TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Monday, December 21, 2015

How Bob Dole Got America Addicted To Marijuana Taxes

Marijuana (2015)Brookings Institution:  How Bob Dole Got America Addicted to Marijuana Taxes, by Pat Oglesby:

As states legalize marijuana, more marijuana businesses are opening across the country. An obscure 1982 brainchild of Bob Dole’s Senate Finance Committee, section 280E of the federal tax code, is hitting state-legal marijuana sellers in the pocketbook—right now. 280E, which says taxpayers cannot deduct costs of selling federally illegal drugs, is not just helping fund the federal government. It’s also hampering marijuana advertising and marketing—to the satisfaction of nervous parents, and to the consternation of profit-seeking marijuana promoters.

280E was more a political statement than a model of tax policy, and it can’t eliminate marijuana advertising. But it does discourage that advertising, so it may be one of the most useful marijuana tax laws we can imagine. And while some anti-advertising proposals run afoul of the commercial free speech doctrine, 280E is constitutional. So 280E may help slow down Big Marijuana. If so, an anti-advertising tax rule like 280E might come in handy if the public ever musters the strength to take on Big Alcohol and Big Tobacco.

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

Avi-Yonah & Marian:  Inversions And Competitiveness — Reflections In The Wake Of Pfizer/Allergan

Reuven S. Avi-Yonah (Michigan) & Omri Y. Marian (UC-Irvine), Inversions and Competitiveness: Reflections in the Wake of Pfizer/Allergan:

The recent announcement that Pfizer Inc. has reached a merger agreement with Allergan PLC , with the combined entity being tax-resident in Ireland, is a good occasion to reconsider U.S. policy options in regard to inversions. We consider an “inversion” any transaction in which a U.S. corporation becomes foreign for tax purposes without a meaningful change to its underlying business or management activities.

This short article explains what we believe to be the true motives of inversion transactions, as well as potential policy reposes, in light of the Pfizer inversion. Part I explains what is unique about the Pfizer inversion, so as to make it a case study worthy of special consideration. We use the Pfizer deal to reject the argument that inversions are driven by “competitiveness” considerations.

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

Sunday, December 20, 2015

The Top 5 Tax Paper Downloads

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

  1. [230 Downloads]  The Three Causes of Inversions: Reflections on Pfizer/Allergan and Notice 2015-79, by Reuven Avi-Yonah (Michigan)
  2. [182 Downloads]  The State Administration Of International Tax Avoidance, by Omri Y. Marian (UC-Irvine)
  3. [135 Downloads]  The Effect of Profit Shifting on the Corporate Tax Base in the United States and Beyond, by Kimberly A. Clausing (Reed College)
  4. [113 Downloads]  Transfer Pricing Challenges in the Cloud, by Orly Mazur (SMU)
  5. [105 Downloads]  Revisiting the Taxation of Fringe Benefits, by Jay A. Soled (Rutgers) & Kathleen DeLaney Thomas (North Carolina)

December 20, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, December 18, 2015

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup

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December 18, 2015 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

Thursday, December 17, 2015

Hackney: Why Section 501(c)(6) Trade Associations Are Undeserving Of Tax Exemption

Philip Hackney (LSU), Taxing the Unheavenly Chorus: Why Section 501(c)(6) Trade Associations Are Undeserving of Tax Exemption, 92 Denv. U. L. Rev. 265 (2015):

Our federal, state, and local governments provide a subsidy that enhances the political voice of business interests. This article discusses the federal subsidy for business interests provided through the Internal Revenue Code (“Code”) and argues why we should end that subsidy. Under the same section that provides exemption from income tax for charitable organizations, the Code also exempts nonprofit organizations classified as “business leagues, chambers of commerce, real-estate boards, boards of trade, or professional football leagues.” Theory supporting tax exemption states that we should subsidize nonprofit organizations that provide goods or services that are undersupplied by the market. A charitable organization that assists the poor is a classic example of a service undersupplied by the market. Business interest group services, however, are found in abundance.

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December 17, 2015 in Scholarship, Tax | Permalink | Comments (1)

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through December 1, 2015) 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 (Michigan)

51,061

Reuven Avi-Yonah (Michigan)

8464

2

Paul Caron (Pepperdine)

29,956

Michael Simkovic (Seton Hall)

4599

3

Michael Simkovic (Seton Hall)

29,764

D. Dharmapala (Chicago)

3828

4

Louis Kaplow (Harvard)

25,115

Paul Caron (Pepperdine)

2771

5

D. Dharmapala (Chicago)

25,064

Gregg Polsky (N. Carolina)

2240

6

Vic Fleischer (San Diego)

21,661

Richard Ainsworth (BU)

2097

7

James Hines (Michigan)

21,274

Ed Kleinbard (USC)

2076

8

Ted Seto (Loyola-L.A.)

20,413

Louis Kaplow (Harvard)

1849

9

Richard Kaplan (Illinois)

20,072

Jeff Kwall (Loyola-Chicago)

1828

10

Ed Kleinbard (USC)

19,067

Robert Sitkoff (Harvard)

1791

11

Katie Pratt (Loyola-L.A.)

18,125

Dan Shaviro (NYU)

1719

12

Richard Ainsworth (BU)

16,691

Katie Pratt (Loyola-L.A.)

1504

13

Carter Bishop (Suffolk)

16,456

Brad Borden (Brooklyn)

1478

14

Robert Sitkoff (Harvard)

16,131

Chris Hoyt (UMKC)

1446

15

Jen Kowal (Loyola-L.A.)

16,032

Jack Manhire (Texas A&M)

1397

16

Chris Sanchirico (Penn)

15,883

Chris Sanchirico (Penn)

1332

17

Dennis Ventry (UC-Davis)

15,837

Vic Fleischer (San Diego)

1328

18

Brad Borden (Brooklyn)

15,718

Omri Marian (UC-Irvine)

1318

19

David Weisbach (Chicago)

15,640

Nancy McLaughlin (Utah)

1239

20

Francine Lipman (UNLV)

15,379

Jen Kowal (Loyola-L.A.)

1231

21

Bridget Crawford (Pace)

14,903

Ruth Mason (Virginia)

1184

22

David Walker (BU)

14,658

Francine Lipman (UNLV)

1173

23

Dan Shaviro (NYU)

14,167

Dick Harvey (Villanova)

1141

24

Herwig Schlunk (Vanderbilt)

12,969

Jordan Barry (San Diego)

1136

25

Steven Bank (UCLA)

12,532

James Hines (Michigan)

1097

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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December 17, 2015 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Wednesday, December 16, 2015

Hickman:  Exploring The 'How' of Tax Legislation—Reviewing Doran, Kysar On The Tax Legislative Process

JotwellKristin Hickman (Minnesota), Exploring the 'How' of Tax Legislation (Jotwell), reviewing:

Much of tax scholarship—past and present—focuses on the “what” of taxation: the substantive content of the tax laws, and what that content is or ought to be. As Leigh Osofsky recently observed in a delightful series of posts on PrawfsBlawg (see here, here, here, here, and here), a growing trend in tax scholarship considers tax administration, which one might describe as the “how” of taxation, or at least part of it. A separate, but related, strain of tax scholarship concerns the “how” of taxation from a different perspective, that of the tax legislative process. Two recent articles published last year offer interesting insights into this aspect of taxation: Michael Doran’s Tax Legislation in the Contemporary U.S. Congress, and Rebecca Kysar’s The ‘Shell Bill’ Game: Avoidance and the Origination Clause.

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December 16, 2015 in Scholarship, Tax | Permalink | Comments (0)

'Socially Responsible' Firms Pay Less Taxes

CFO, Socially Responsible Companies Pay Lower Taxes:

A new study debunks the common notion that companies with high CSR ratings do not practice aggressive tax avoidance.

To many students of corporate social responsibility, or CSR, Pfizer’s recent decision to move its headquarters to Ireland may have been perplexing.

According to an MSCI index that rates companies’ citizenship, Pfizer scores high in CSR, a status commonly thought to be at odds with aggressive tax avoidance. Yet Pfizer now plans to move from its longstanding base in the United States across the ocean for that very purpose.

But is Pfizer an exceptional case? Some new research suggests that it’s not. In the words of a study scheduled to be in the January issue of the American Accounting Association journal The Accounting Review [Do Socially Responsible Firms Pay More Taxes?], companies’ CSR ratings are “negatively related to five-year cash effective tax rates, and these results are driven by firms with high CSR.”

In other words, a higher rating in corporate social responsibility — which takes in such matters as community commitment, diversity, employee relations, environmental stewardship, and product safety and quality — is associated with lower taxes paid. More specifically, in a large sample of U.S. firms in which the effective tax rate averaged 26%, those ranked in the top fifth in CSR paid an average of 1.7 percentage points below what the remainder paid. In short, that’s about 6% less, after controlling for other differences that have been found to affect tax rates.

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December 16, 2015 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, December 15, 2015

Burke Reviews Kahng's Taxation of Intellectual Capital

Karen C. Burke (Florida), Comments on Taxation of Intellectual Capital: Better than Consumption-Tax Treatment?, 66 Fla. L. Rev. F. 47 (2015):

In The Taxation of Intellectual Capital, [66 Fla. L. Rev. 2229 (2014),] Professor Lily Kahng argues that U.S. tax law is fundamentally flawed because it allows businesses to “expense” investments in self-created intangibles. The article draws on research in related areas (knowledge management, financial accounting, and national accounting) that seeks to identify and measure “intellectual capital,” “a central driver of economic productivity and growth.” Within the framework of a normative income tax, Professor Kahng argues that businesses should be required to capitalize and amortize investments in a broad array of intangibles, including research and development, advertising, and employee-training expenses. 

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December 15, 2015 in Scholarship, Tax | Permalink | Comments (1)

Alstott:  Taxation In Six Concepts

AnneAnne L. Alstott (Yale), Taxation in Six Concepts: A Student's Guide (Wolters Kluwer 2015):

Tax doctrines rest on a handful of concepts -- just six, in fact. Armed with six concepts, you can decipher the law. In the United States, more so than in any other developed country, the tax law hosts many of the government s most important social and economic policies. Health care, housing, financial markets, education,and poverty, for example, involve tax. In short, tax turns out to host many interesting and pressing public policy problems.

This book introduces the six concepts and uses them to unpack leading cases and real-world transactions. The six are valuation, net income, realization, tax deferral, substance over form and income-shifting. The cases discussed involve one (or two) of the six concepts discussed. This book also looks beyond the classroom. At every step, real-world transactions are included to show how tax planning harks back to the six concepts.

Of course, tax law, like all law, is full of ambiguity and contradiction. Sometimes there is no single right answer. Courts reach conflicting decisions and use inconsistent reasoning. But the six concepts explain the conflicts within the law that give rise to ambiguity and uncertainty.

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December 15, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (2)

Lobel:  The IRS Is In Crisis And The Tax Community Needs To Help

Martin Lobel (Lobel Novins & Lamont, Washington, D.C.; Chair, Tax Analysts' Board of Directors), The IRS Is in Crisis and the Tax Community Needs to Help, 149 Tax Notes 1407 (Dec. 14, 2015):

We are on the edge of a precipice. Unless those who know the importance of the IRS take action, we are on the verge of losing the respect and, indeed, fear of the IRS that makes it such an effective revenue raiser. And, without sufficient revenue, we don't have a government that can meet our essential needs.

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December 15, 2015 in IRS News, Scholarship, Tax | Permalink | Comments (5)

Monday, December 14, 2015

Taite:  Crummey Delivers Another Knockout Punch To The IRS

Phyllis C. Taite (Florida A&M), Crummey Delivers Another Knockout Punch to the IRS, 149 Tax Notes 839 (Nov. 9, 2015):

In this article, Taite discusses Mikel v. Commissioner, [T.C. Memo. 2015-64 (Apr. 6, 2015),] in which the Tax Court addressed whether the donors qualified for the annual exclusion for gifts made to a trust with an in terrorem provision and a mandatory arbitration clause.

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

Forman & Mann:  Making The IRS Work

Florida Tax ReviewJonathan Barry Forman (Oklahoma) & Roberta F. Mann (Oregon), Making the Internal Revenue Service Work, 17 Fla. Tax Rev. 725 (2015):

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

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

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

Puckett:  Structural Tax Exceptionalism

James M. Puckett (Penn State), Structural Tax Exceptionalism, 50 Ga. L. Rev. ___ (2015):

This Article argues that it is misleading to declare the death of tax exceptionalism and that structural tax exceptionalism may have important benefits. Part II provides a brief historical overview of the rise of federal agency administration of statutes and especially tax laws. The history trends to detract from anti-tax and anti-agency rhetoric that counsel disempowering the Treasury Department and other administrative agencies from comprehensively enforcing laws and making policy in their relevant domains.

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

Sunday, December 13, 2015

The Top 5 Tax Paper Downloads

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

  1. [252 Downloads]  2015 Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases, by Nancy A. McLaughlin (Utah) & Steven J. Small (Law Office of Stephen J. Small, Newton, MA)
  2. [195 Downloads]  The Three Causes of Inversions: Reflections on Pfizer/Allergan and Notice 2015-79, by Reuven Avi-Yonah (Michigan)
  3. [177 Downloads]  Friends with Tax Benefits: Apple's Cautionary Tale, by Allison Christians (McGill)
  4. [163 Downloads]  The State Administration Of International Tax Avoidance, by Omri Y. Marian (UC-Irvine)
  5. [120 Downloads]  The Effect of Profit Shifting on the Corporate Tax Base in the United States and Beyond, by Kimberly A. Clausing (Reed College)

December 13, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, December 11, 2015

Weekly SSRN Tax Roundup

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December 11, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

Thursday, December 10, 2015

Scheve Presents Taxing The Rich: A History Of Fiscal Fairness In The U.S. And Europe At Columbia

TaxingKenneth Scheve (Stanford) presented Taxing the Rich: A History of Fiscal Fairness in the United States and Europe (Princeton University Press, 2016) (with David Stasavage (NYU)) at Columbia on Tuesday as part of its Davis Polk & Wardwell Tax Policy Colloquium Series hosted by Alex Raskolnikov and Wojciech Kopczuk:

In today's social climate of acknowledged and growing inequality, why are there not greater efforts to tax the rich? In this wide-ranging and provocative book, Kenneth Scheve and David Stasavage ask when and why countries tax their wealthiest citizens—and their answers may surprise you.

Taxing the Rich draws on unparalleled evidence from twenty countries over the last two centuries to provide the broadest and most in-depth history of progressive taxation available. Scheve and Stasavage explore the intellectual and political debates surrounding the taxation of the wealthy while also providing the most detailed examination to date of when taxes have been levied against the rich and when they haven't. Fairness in debates about taxing the rich has depended on different views of what it means to treat people as equals and whether taxing the rich advances or undermines this norm. Scheve and Stasavage argue that governments don't tax the rich just because inequality is high or rising—they do it when people believe that such taxes compensate for the state unfairly privileging the wealthy. Progressive taxation saw its heyday in the twentieth century, when compensatory arguments for taxing the rich focused on unequal sacrifice in mass warfare. Today, as technology gives rise to wars of more limited mobilization, such arguments are no longer persuasive.

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December 10, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Dodge:  Eliminating Accrual, Depreciation, And The Existing Tax Treatment Of Borrowing

Florida Tax ReviewJoseph M. Dodge (Florida State), Toward Income Tax Accounting Consistency: Eliminating Accrual, Depreciation, and the Existing Tax Treatment of Borrowing, 18 Fla. Tax Rev. 1 (2015):

The thesis here is that inconsistent tax accounting rules undermine the individual income tax, and the best available move for improving it—given the unassailability of the realization principle—is to eliminate its accrual (and quasi-accrual) features. Specifically, the agenda is to eliminate tax accrual accounting in the conventional sense, revamp the tax treatment of borrowing to (inter alia) abolish the Crane doctrine, and eliminate depreciation deductions for indivisible productive assets. The end result would be a consistent cash realization system for (at least) individual taxpayers.

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December 10, 2015 in Scholarship, Tax | Permalink | Comments (1)

Wednesday, December 9, 2015

NYU Tax Law Review Publishes New Issue

NYU Law (2014)The Tax Law Review has published a new issue (Vol. 68, No. 2 (Winter 2015)):

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December 9, 2015 in Scholarship, Tax | Permalink | Comments (0)

Will Technology Create More Legal Jobs Than It Destroys?

Chart 11James E. Bessen (Boston University), How Computer Automation Affects Occupations: Technology, Jobs, and Skills:

This paper investigates basic relationships between technology and occupations. Building a general occupational model, I look at detailed occupations since 1980 to explore whether computers are related to job losses or other sources of wage inequality. Occupations that use computers grow faster, not slower. This is true even for highly routine and mid-wage occupations. Estimates reject computers as a source of significant net technological unemployment or job polarization. But computerized occupations substitute for other occupations, shifting employment and requiring new skills. Because new skills are costly to learn, computer use is associated with substantially greater within-occupation wage inequality.

11BNew York Times:  Automation Is a Job Engine, New Research Says, by Steve Lohr:

The fear that technology is poised to kill jobs in unprecedented numbers is widely prevelent these days. Nothing is likely to ease that anxiety much, but a new research paper might prompt some second thoughts.

Using government data, James Bessen, a researcher and lecturer at the Boston University School of Law, examined the impact of computer automation on 317 occupations from 1980 through 2013. His conclusion, in a sentence, was: “Employment grows significantly faster in occupations that use computers more.” ... “The idea that automation kills jobs isn’t true historically, and if you look at the last 30 years, it’s not true then either,” he said in an interview. “Right now, the best thing that can happen to you is to get some automation to do your job better.” ...

His comment echoes the main finding of a recent report from the McKinsey Global Institute, which concluded that many work tasks within jobs can be automated in the next three to five years. But the impact, according to the McKinsey report, will be to alter jobs rather than eliminate them.

Frank Pasquale (Maryland), Complicating the Narrative of Legal Automation:

Experts with a bit more historical perspective differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%. Even the highly cited study by Carl Frey and Michael Osborne (The Future of Employment: How Susceptible Are Jobs to Automation) placed attorneys in the “low risk” category when it comes to replacement by software and robots. They suggest paralegals are in much more danger.

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December 9, 2015 in Legal Education, Scholarship | Permalink | Comments (7)

Smith:  Standing Issues In Direct APA Challenges To Tax Regulations

Patrick J. Smith (Ivins, Phillips & Barker, Washington, D.C.), Standing Issues in Direct APA Challenges to Tax Regulations, 149 Tax Notes 1033 (Nov. 23, 2015):

In a prior article [Challenges to Tax Regulations: The APA and the Anti-Injunction Act, 147 Tax Notes 915 (May 25, 2015)], I argued that after the Supreme Court’s recent decision in Direct Marketing, taxpayers will likely be able to bring direct challenges to the validity of tax regulations in district court without being barred by the Anti-Injunction Act, meaning that they will not have to first engage in a transaction to which the regulations are applied and thereby incur a tax liability based on the application of the regulations to that transaction.

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December 9, 2015 in Scholarship, Tax | Permalink | Comments (0)

Manhire:  Beyond The U.S. News Index — A Better Measure Of Law School Diversity

2016 U.S. News RankingsJ. T. Manhire (Texas A & M), Beyond the U.S. News Index: A Better Measure of Law School Diversity, 101 Iowa L. Rev. Online 1 (2015):

The U.S. News & World Report publishes a diversity index along with its annual ranking of U.S. law schools. Race and ethnicity are the only factors the magazine uses to measure law school diversity. But is this a meaningful measure of student difference? Are race and ethnicity all that count or are there other differences that contribute to a richer educational experience for students and better outcomes for law schools? In a 2011 Iowa Law Review article, Kevin Johnson argues that law school diversity is not limited to only race and ethnicity. He further argues that law school diversity, defined broadly, is critical to the success of legal education; both for the students and the institutions that serve them.

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December 9, 2015 in Law School Rankings, Legal Education, Scholarship | Permalink | Comments (2)

Tuesday, December 8, 2015

Fleischer: Curb Your Enthusiasm For Pigovian Taxes

Victor Fleischer (San Diego), Curb Your Enthusiasm for Pigovian Taxes, 68 Vand. L. Rev. 1673 (2015):

Pigovian (or “corrective”) taxes have been proposed or enacted on dozens of harmful products and activities: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of using Pigovian taxes more frequently to address serious social harms, some even calling for the creation of a “Pigovian state.”

This academic enthusiasm for Pigovian taxes should be tempered. A Pigovian tax is easy to design—as a uniform excise tax—if one assumes that each individual causes the same amount of harm with each incremental increase in activity on the margin. This assumption of uniform marginal social cost pairs well with the limited information and enforcement capacity of government institutions. But when marginal social cost varies significantly, a Pigovian tax may not lead to an optimal allocation of economic resources. Focusing on carbon emissions, where the assumption of uniform marginal social cost happens to be reasonable, obscures this common design flaw.

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December 8, 2015 in Scholarship, Tax | Permalink | Comments (0)

Masur & Posner: Toward A Pigovian State

Jonathan Masur (Chicago) & Eric Posner (Chicago), Toward a Pigovian State, 164 U. Pa. L. Rev. 93 (2015):

Most economists believe that the government should impose Pigovian taxes on firms that produce negative externalities like pollution, yet regulatory agencies hardly ever use their authority to create Pigovian taxes. Instead, they issue command-and-control regulations. Our major point is that, contrary to the conventional wisdom, regulators typically have legal authority to create Pigovian taxes — they just do not use it. While regulators may hesitate to impose Pigovian taxes for a range of political and symbolic reasons, we argue that these reasons do not justify this massive failure of regulatory efficiency. It is time for the regulatory state to take a Pigovian turn.

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December 8, 2015 in Scholarship, Tax | Permalink | Comments (0)

Monday, December 7, 2015

Deceased Spousal Unused Exclusion Preservation Planning

Austin W. Bramwell & Leah Socash (Milbank, Tweed, Hadley & McCloy, New York), Preserving Inherited Exclusion Amounts: The New Planning Frontier, 50 Real Prop. Tr. & Est. L.J. 1 (2015):

Portability has forced estate planners to reconsider how they plan for married couples. But the impact of these rules stretches beyond married couples to affect surviving spouses who choose to remarry. In essence, these rules have created a whole new area of planning—deceased spousal unused exclusion preservation planning—that did not previously exist. This Article examines this new field in detail and the advantages and disadvantages of its various techniques.

December 7, 2015 in Scholarship, Tax | Permalink | Comments (0)

Call For Junior Tax Papers: Sorbonne (Paris) Law School

Sorbonne 2The Sorbonne Law School Tax Law Department has issued a Call for Papers for the Fourth Junior Tax Scholars Conference on The Instruments of International Tax Law:

International tax law is composed of multiple instruments. Bilateral and multilateral agreements are, nowadays, standard means for the harmonious coexistence of national tax systems. The recent reforms in the USA as well as the current efforts carried by the OECD and the European Union question the value and the future of these instruments as part of the international tax system.

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December 7, 2015 in Scholarship, Tax | Permalink | Comments (0)

Sunday, December 6, 2015

The Top 5 Tax Paper Downloads

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

  1. [402 Downloads]  Big Data and Tax Haven Secrecy, by Arthur J. Cockfield (Queen's University)
  2. [232 Downloads]  2015 Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases, by Nancy A. McLaughlin (Utah) & Steven J. Small (Law Office of Stephen J. Small, Newton, MA)
  3. [151 Downloads]  Friends with Tax Benefits: Apple's Cautionary Tale, by Allison Christians (McGill)
  4. [148 Downloads]  The State Administration Of International Tax Avoidance, by Omri Y. Marian (UC-Irvine)
  5. [145 Downloads]  The Three Causes of Inversions: Reflections on Pfizer/Allergan and Notice 2015-79, by Reuven Avi-Yonah (Michigan)

December 6, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, December 4, 2015

Weekly SSRN Tax Roundup

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December 4, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

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December 4, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

The Viability Of The $30 Law School Casebook

Lydia Pallas Loren (Lewis & Clark), The Viability of the $30 Casebook: Intellectual Property, Voluntary Payment, Open Distribution, and Author Incentives, 22 J. Intell. Prop. L. 71 (2014):

It is not uncommon for a new hardbound copy of today’s law school casebooks to exceed $200. And, each year, the prices inch ever higher. After exploring the various dynamics in the traditional publishing market that have led to the current prices for casebooks, this article describes the experiences of Semaphore Press, a publisher of law school casebooks that offers a very different approach to providing law school casebooks. Semaphore Press offers digital copies of required textbooks for law school classes, (in pdf format with no digit rights management (DRM) restrictions), at a suggested price of $30. In addition, students can alter the price they pay, paying less or more than the suggested price, or they even download a copy of a required casebook for free. Semaphore Press’s commitment, embodied in this design, is that — whatever else happens — the student obtains access to the course materials.

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December 4, 2015 in Book Club, Legal Education, Scholarship | Permalink | Comments (5)

Galle: In Praise Of Ex Ante Regulation

Brian Galle (Georgetown), In Praise of Ex Ante Regulation, 68 Vand. L. Rev. 1715 (2015):

Timing is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only after the invention is marketed. In a world of perfect information, fully rational actors, and complete credit or insurance markets, timing would not matter. In the real world though, the failure of one or more of these assumptions can change dramatically the impact of a regulatory option. For example, prior commentators have largely favored ex post incentives on the ground that government has much better information after the regulated activity is complete.

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

Thursday, December 3, 2015

Yagan:  The Economic Effects Of The 2003 Dividend Tax Cut

Danny Yagan (UC-Berkeley), Capital Tax Reform and the Real Economy: The Effects of the 2003 Dividend Tax Cut, 105 Am. Econ. Rev. 3531 (2015):

This paper tests whether the 2003 dividend tax cut—one of the largest reforms ever to a US capital tax rate—stimulated corporate investment and increased labor earnings, using a quasi-experimental design and US corporate tax returns from years 1996-2008. I estimate that the tax cut caused zero change in corporate investment and employee compensation. Economically, the statistical precision challenges leading estimates of the cost-of-capital elasticity of investment, or undermines models in which dividend tax reforms affect the cost of capital. Either way, it may be difficult to implement an alternative dividend tax cut that has substantially larger near-term effects.

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December 3, 2015 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, December 2, 2015

Mintz Presents An Agenda For Corporate Tax Reform In Canada Today At Toronto

MintzJack Mintz (Calgary) presents An Agenda for Corporate Tax Reform in Canada at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

Canada’s corporate tax system has become far more competitive with other countries over the past 15 years. But we are now at risk of falling behind again.

Some provinces have eroded earlier gains by raising a variety of existing business taxes or introducing new ones. What’s more, we have not gone as far as many other advanced economies in improving the neutrality of our tax system, in other words, the extent to which the same rules apply across business sectors, and between large and small companies. Our tax policies tend to favour manufacturing over services, resulting in a bias against investment in some sectors with exceptionally strong growth prospects

This paper questions the long-held assumption that favourable tax treatment for small businesses encourages investment, job creation and overall economic growth. In fact, tax advantages enjoyed by small business end up discouraging entrepreneurs from pursuing growth. They also distort the allocation of capital by favouring small company investment, which typically earns a lower return than investment by larger firms. To make matters worse, the favourable tax treatment of small businesses enables many wealthy Canadians to pay little or no personal income tax.

The main conclusion I draw is that Canada should retain the present system of corporate income taxes while initiating a fresh round of reforms, as follows:

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December 2, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Hines & Logue:  Delegating Tax

James R. Hines, Jr. (Michigan) & Kyle D. Logue (Michigan), Delegating Tax, 114 Mich. L. Rev. 235 (2015):

Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation.

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December 2, 2015 in Scholarship, Tax | Permalink | Comments (1)

Tuesday, December 1, 2015

Thomas Presents User-Friendly Taxpaying Today At Columbia

Thomas (2015)Kathleen DeLaney Thomas (North Carolina) presents User-Friendly Taxpaying at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium Series hosted by Alex Raskolnikov and Wojciech Kopczuk:

This Article argues that policymakers could encourage better tax compliance by simplifying the process of paying taxes. Not only are the tax laws themselves confusing, but our interactions with the tax system can also be incredibly tedious and burdensome. Thus, even when taxpayers understand the relevant legal rules, complying with one’s tax obligations may still entail hours of entering information on returns, sifting through pages of instructions, or keeping records of numerous expenses. In addition to imposing enormous efficiency costs, these procedural burdens deter voluntary participation in the tax system. In light of the time and mental effort required, many taxpayers may decide that fully complying with their tax obligations is simply too much work. This tendency to avoid mental effort is supported by numerous behavioral studies. For example, research has shown that when individuals are mentally fatigued by burdensome tasks, they tend to cheat more, behave more passively, and have a harder time exercising self-control.

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December 1, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Marian: Home-Country Effects Of Corporate Inversions

Omri Marian (UC-Irvine), Home-Country Effects of Corporate Inversions, 90 Wash. L. Rev. 1 (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.

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

Monday, November 30, 2015

Baker Presents Base Erosion And Profit Shifting Today At McGill

BakerAlbert Baker (Global Leader in Tax Policy, Deloitte (Toronto)) presents Base Erosion and Profit Shifting at McGill today as part of its Spiegel Sohmer Tax Policy Colloquium Series:

His recent research focuses on base erosion & profit shifting, a project to address concerns that current international tax frameworks result in double non-taxation, or stateless income, or reducing the tax base in high tax countries.

The attached Deloitte alerts summarise the key points and set out an overall perspective from both an International Tax and a US Tax perspective. Deloitte alerts on the individual papers can be accessed through the links below.

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

Deans' Leadership In Legal Education Symposium

ToledoSymposium, 13th Deans' Leadership in Legal Education, 46 U. Tol. L. Rev. 251-448 (2015):

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November 30, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Sunday, November 29, 2015

The Top 5 Tax Paper Downloads

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

  1. [416 Downloads]  Income Tax Deductions for Charitable Bequests of IRD, by Christopher R. Hoyt (UMKC)
  2. [388 Downloads]  Big Data and Tax Haven Secrecy, by Arthur J. Cockfield (Queen's University)
  3. [300 Downloads]  Too Big to Tax? Vanguard and the Arm’s Length Standard, by Reuven Avi-Yonah (Michigan)
  4. [215 Downloads]  2015 Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases, by Nancy A. McLaughlin (Utah) & Steven J. Small (Law Office of Stephen J. Small, Newton, MA)
  5. [164 Downloads]  A New Estate Tax: Eliminating the Step-Up in Basis at Death, , by Sean McElroy (J.D. 2016, Stanford)

November 29, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Bob Jones Empowers The IRS To Revoke 501(c)(3) Status Of Private Religious Universities That Discriminate On The Basis Of Gender Or Sexual Orientation

Amy L. Moore (Belmont), Rife with Latent Power: Exploring the Reach of the IRS to Determine Tax-Exempt Status According to Public Policy Rationale in an Era of Judicial Deference, 56 S. Tex. L. Rev. 117  (2014):

Using the case of Bob Jones University v. United States as a springboard, this article contends that the IRS has the legal authority to revoke the 501(c)(3) tax-exempt statuses of any institution that the IRS deems to be in violation of public policy. The first step to such an expansion might be to apply to private, religious universities that practice discrimination in areas other than race (e.g. gender and sexual orientation). This article traces the background and analysis of the Supreme Court decision in Bob Jones and how the Court left the door open for the IRS to make other public policy decisions and also considers how judicial deference and Chevron analysis could facilitate the choices of the IRS to determine public policy and status of exemptions.

November 29, 2015 in Scholarship, Tax | Permalink | Comments (1)

Friday, November 27, 2015

Weekly Legal Education Roundup

Thursday, November 26, 2015

Hoffer: Financial Planning for Children With Disabilities

HofferStephanie Hoffer (Ohio State), Financial Planning for Children With Disabilities:

My son George is a bright shining star. He is almost five, and he loves to read out loud, play the harmonica, and paint. He also happens to have Down Syndrome. He is smart, funny, and loving, and I can’t imagine life without him. I am grateful every day for the privilege of being his mom. And like any other mom of any other child, I worry every day about his future. ...

Until recently, parents and individuals with significant disabilities had two basic estate planning options to preserve Medicaid eligibility: the responsible sibling or the special needs trust. Leaving money with a responsible sibling is risky. It is exposed the sibling’s creditors. It can be lost in a divorce. If the sibling dies, it might be dispersed.   But putting money in a special needs trust isn’t much better. Although the money is protected from creditors, the Medicaid law requires that the trustee have absolute discretion over the money and that the money not be used for expenses that could be covered by government programs. In other words, an individual who is a beneficiary of a special needs trust can never demand money from the trust, and if the trustee decides to distribute money, the individual beneficiary cannot use it for ordinary adult expenses like rent, groceries, or even some utilities.

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November 26, 2015 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, November 25, 2015

Virginia Tax Review Publishes New Issue

Virginia Tax Review (2014)The Virginia Tax Review has published Vol. 34, No. 3 (Winter 2015):

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

Should Law Librarians Attend And Participate In Faculty Meetings?

Faculty MeetingCharlotte D. Schneider (Reference Librarian, Rutgers), Inclusion and Participation: Law Librarians at Law Faculty Meetings, 107 Law Libr. J. 113 (2015):

Despite the vital role they play in the success of their law schools, academic law librarians are often denied attendance to and participation in law faculty meetings on certain matters of law school governance. This article argues that including qualified librarians in faculty meeting discussions and decision making will benefit law schools, faculty, and students alike.

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November 25, 2015 in Legal Education, Scholarship | Permalink | Comments (4)

Tuesday, November 24, 2015

Fennell Presents The Distributive Deficit In Law And Economics Today At Columbia

Fennell (2015)Lee Anne Fennell (Chicago) presents The Distributive Deficit in Law and Economics, 100 Minn. L. Rev. ___ (2016) (with Richard H. McAdams (Chicago)), at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium Series hosted by Alex Raskolnikov and Wojciech Kopczuk:

Welfarist law and economics ignores the distributive consequences of legal rules to focus solely on efficiency, even though distribution unambiguously affects welfare, the normative maximand. The now-conventional justification for disregarding distribution is the claim of tax superiority: that the best means of influencing or correcting distribution is via tax-and-transfer. Critics have observed that optimal redistribution through tax may be politically infeasible, but have generally overlooked the rejoinder that the same political impediments to redistribution through tax will block redistribution through legal rules. This “invariance hypothesis,” as we label it, holds that there is only one distributive equilibrium and that Congress will offset through tax any deviations from it.

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

Monday, November 23, 2015

Brooks Presents The Troubling Role Of Tax Treaties Today At McGill

BrooksKim Brooks (Dalhousie University, Schulich School of Law) presents The Troubling Role of Tax Treaties (with Richard Krever (Monash University, Department of Business Law & Taxation)) at McGill today as part of its Spiegel Sohmer Tax Policy Colloquium Series:

The notional purpose of tax treaties is to prevent double taxation and tax evasion. The actual purpose is to reallocate taxing rights between an investor’s home jurisdiction (the residence state) and the host jurisdiction (the source state). The effect is to reduce or remove the taxing rights of a source state (a capital importing state) to leave more room for tax in the residence state (a capital exporting state). The revenue costs of agreeing to reduce taxing rights in a treaty are thought to be offset by other benefits. The benefits may be exaggerated. To the extent they may actually be realized, all can likely be achieved more efficiently through unilateral action by the source state.

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

Ending Segregation Of LGBTQ Students By Creating Barriers To 501(C)(3) Tax-Exempt Status

Jennifer Lunsford (Segar & Sciortino in Rochester, New York) & R. Zachary Sanzone, Outing the New Jim Crow: Ending Segregation of LGBTQ Students by Creating Barriers to 501(C)(3) Tax-Exemption Status, 23 Am. U. J. Gender Soc. Pol'y & L. 435 (2015):

Congress has broad taxation powers. As such, both the government and the citizenry have used the tax code throughout history to accomplish otherwise impossible goals. In the 1960s and 1970s, following the forced desegregation of public schools, private, religious schools began cropping up all over the country to provide a de facto segregated experience to white students. The legal obstacles that prevented the government from forcing these schools to accept black students are the same obstacles standing in the way of LGBTQ integration in similar schools today. To circumvent these legal obstacles the IRS issued Revenue Rule 71-447, which refused § 501(c)(3) tax-exempt status to private schools with racially discriminatory admission standards. Section 501(c)(3) status was vital to these schools as it allowed them to not only avoid tax burdens, but also encouraged monetary contributions from others by making donations tax deductible under § 170. This revenue rule effectively put a chokehold on the funding stream for private, religious schools that refused to accept non-white students, thereby forcing these schools to either integrate or close their doors. Implementing such a method today can help integrate LGBTQ students into the classroom community.

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

Sunday, November 22, 2015

The Top 5 Tax Paper Downloads

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

  1. [403 Downloads]  Income Tax Deductions for Charitable Bequests of IRD, by Christopher R. Hoyt (UMKC)
  2. [360 Downloads]  Big Data and Tax Haven Secrecy, by Arthur J. Cockfield (Queen's University)
  3. [311 Downloads]  2014 Developments in Connecticut Estate and Probate Law, by Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid and Riege, Hartford)
  4. [223 Downloads]  Too Big to Tax? Vanguard and the Arm’s Length Standard, by Reuven Avi-Yonah (Michigan)
  5. [199 Downloads]  2015 Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases, by Nancy A. McLaughlin (Utah) & Steven J. Small (Law Office of Stephen J. Small, Newton, MA)

November 22, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)