TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, August 24, 2017

Park: Arbitrability And Tax

William W. Park (Boston University), Arbitrability and Tax:

Although arguments exist that fiscal disputes should remain beyond private adjudication, implicating as they do the sovereign prerogative of revenue raising, the practice proves very much to the contrary. Arbitration of tax-related disputes proves very much a reality despite doctrinal objections. The amenability of such disputes to arbitration remains highly fact-intensive, with no hard-and-fast rule prohibiting all tax arbitration per se, while some controversies stay out-of-bounds for arbitrators.

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August 24, 2017 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, August 23, 2017

Eyal-Cohen: Through The Lens of Innovation

Mirit Eyal-Cohen (Alabama), Through the Lens of Innovation, 43 Fla. St. U. L. Rev. 951 (2016):

The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of entrepreneurship. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Entrepreneurship turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviation as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes.

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August 23, 2017 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, August 22, 2017

Women Economists Face A 'Toxic' Work Environment

Alice H. Wu, Gender Stereotyping in Academia: Evidence from Economics Job Market Rumors Forum:

This paper examines whether people in academia portray and judge women and men differently in everyday “conversations” that take place online. I combine methods from text mining, machine learning and econometrics to study the existence and extent of gender stereotyping on Economics Job Market Rumors forum. Through a topic analysis, I find that the discourse tends to become significantly less academic or professional oriented, and more about personal information and physical appearance when women are mentioned. The words with the strongest predictive power on gender, selected by the Lasso-logistic model, provide a direct look into the gender stereotyping language on this forum. Moreover, a panel data analysis reveals the state dependence between the content of posts within a thread. In particular, if women are mentioned previously in a thread, the topic is likely to shift from academic to personal. Finally, I restrict the analysis to discussions on specific economists, and find that high-profile female economists tend to receive more attention on EJMR than their male counterparts.  

Table 1E

New York Times, Evidence of a Toxic Environment for Women in Economics:

A pathbreaking new study of online conversations among economists describes and quantifies a workplace culture that appears to amount to outright hostility toward women in parts of the economics profession. 

Alice H. Wu, who will start her doctoral studies at Harvard next year, completed the research in an award-winning senior thesis at the University of California, Berkeley. Her paper has been making the rounds among leading economists this summer, and prompting urgent conversations.

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August 22, 2017 in Legal Education, Scholarship | Permalink | Comments (2)

Buckles: The Sexual Integrity Of Religious Schools And Tax Exemption

Johnny Rex Buckles (Houston), The Sexual Integrity of Religious Schools and Tax Exemption, 40 Harv. J.L. & Pub. Pol'y 255 (2017):

Many private universities and other schools adhere to religiously grounded codes of conduct that embrace heterosexual monogamy as the sole moral context for sexual relationships. The federal income tax exemption of these schools has been questioned following the recent Supreme Court opinion of Obergefell v. Hodges. In Obergefell, the Supreme Court held that the right to marry is a fundamental constitutional right that same-sex couples may exercise. The relevance of this decision to the federal tax status of private religious schools arises from another Supreme Court decision, Bob Jones University v. United States. The Court in Bob Jones held that two schools with racially discriminatory policies as to students were not entitled to exemption from federal income tax because the policies violate established public policy. The issue now is whether the sexual conduct policies of private religious schools violate the established public policy of the United States following Obergefell.

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August 22, 2017 in Scholarship, Tax | Permalink | Comments (0)

Westfahl & Wilkins: The Leadership Imperative — A Collaborative Approach To Professional Development

Scott A. Westfahl (Harvard) & David B. Wilkins (Harvard), The Leadership Imperative: A Collaborative Approach to Professional Development in the Global Age of More for Less, 69 Stan. L. Rev. 1667 (2017):

Notwithstanding the increasing importance of technology, the practice of corporate law is — and is likely to remain for the foreseeable future — a human capital business. As a result, law firms must continue to attract, develop, and retain talented lawyers. Unfortunately, the traditional approach, which divides responsibility for professional development among law schools, which are supposed to teach students to think like a lawyer; law firms, which are expected to train associates to “be” lawyers; and corporate clients, whose job it is to foot the bill, is no longer well aligned to the current realities of the marketplace. In this Article, we document the causes for this misalignment and propose a new model of professional development in which law schools, law firms, and corporate clients collaborate to train lawyers to be lifelong learners in the full range of technical, professional, and network-building skills they will need to flourish throughout their careers. We offer specific proposals for how to achieve this realignment and confront the resistance that will inevitably greet any attempt to do so.

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August 22, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Lang & Soled: Disclosing Audit Risk To Taxpayers

Michael B. Lang (Chapman) & Jay A. Soled (Rutgers), Disclosing Audit Risk to Taxpayers, 36 Va. Tax Rev. ___ (2017):

When taxpayers file their tax returns, they are often worried about the prospect of an Internal Revenue Service (Service) audit. To date, the position of the Service and of professional organizations has been that tax return preparers cannot take into account audit risk in evaluating the merits of a return position. Some practitioners have broadly — and incorrectly — interpreted this regulation as a mandate against talking about audit risk with their clients. Taxpayers therefore often make their own assessment of their audit risk, relying on information sources such as the Internet and tax return preparation software. Given the uncertain reliability of such sources, it is appropriate to encourage more communication between tax return preparers and taxpayers on the subject of audit risk.

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August 22, 2017 in Scholarship, Tax | Permalink | Comments (0)

Sanchirico: KISS The Tax Blueprint Goodbye — Meet The 25-25-25 Plan

Chris William Sanchirico (Pennsylvania), KISS the Tax Blueprint Goodbye: Meet the 25-25-25 Plan:

Seeking definitive legislative success after the stall-out on healthcare, Congressional Republicans may want to keep it simple on tax reform. This paper examines the merits and demerits of a particular minimalist tax plan: lower the corporate tax rate to 25%; tax legacy foreign earnings at 25%; move to a “territorial” tax system for foreign earnings with a minimum tax patch at 25%. The paper uses analysis of this specific plan as a vehicle for clarifying some general considerations surrounding business tax reform.

August 22, 2017 in Scholarship, Tax | Permalink | Comments (2)

Friedman: Fixing Law Reviews

Harvard Law ReviewBarry Friedman (NYU), Fixing Law Reviews:

Very few people are happy at present with the law review publishing process, from article submission and selection to editing. Complaints are longstanding, and similar ones emerge from faculty and students alike. Yet, heretofore, change has not occurred. Instead, we are locked in our ugly world of submit and expedite, stepping on the toes of numerous student editors in the process. And the editing process falls far short of ideal.

This Article recommends wholesale change to the submission and editing process.

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August 22, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Monday, August 21, 2017

Liscow: Is Efficiency Biased?

Zachary D. Liscow (Yale), Is Efficiency Biased?:

The most common underpinning of economic analysis of the law has long been the goal of efficiency (i.e., choosing policies that maximize people’s willingness to pay), as reflected in economic analysis of administrative rulemaking, judicial rules, and proposed legislation. Current thinking is divided on the question whether efficient policies are biased against the poor, which is remarkable given the question’s fundamental nature. Some say yes; others, no.

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August 21, 2017 in Scholarship, Tax | Permalink | Comments (1)

Huang: Adventures In Higher Education, Happiness, And Mindfulness

Peter H. Huang (Colorado), Adventures in Higher Education, Happiness, and Mindfulness:

This Article recounts my unique adventures in higher education, including being a Princeton University freshman mathematics major at age 14, Harvard University applied mathematics graduate student at age 17, economics and finance faculty at multiple schools, first-year law student at the University of Chicago, second- and third-year law student at Stanford University, and law faculty at multiple schools. This Article analyzes why law schools should teach law students about happiness and mindfulness. This Article discusses how to teach law students about happiness and mindfulness. Finally, this Article provides brief concluding thoughts about how law students can sustain happiness and mindfulness once they graduate from law school.

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August 21, 2017 in Legal Education, Scholarship | Permalink | Comments (1)

The Impacts Of Autonomous Vehicles And E-Commerce On Local Government Budgeting And Finance

Benjamin Clark, Nico Larco & Roberta Mann (Oregon), The Impacts of Autonomous Vehicles and E-Commerce on Local Government Budgeting and Finance:

Autonomous vehicles (AVs) are already being used and their proliferation is inevitable. AVs have the potential to fundamentally alter transportation systems by averting deadly crashes, providing critical mobility to the elderly and disabled, increasing road capacity, saving fuel, and lowering emissions (Fagnant and Kockelman 2015). Eighteen states and the District of Columbia have enacted legislation regarding AVs1, and the governors of four other states have signed executive orders about AVs2 (National Conference of State Legislatures 2017). In 2017 there were 33 states that had introduced AV legislation, up from 20 in 2016 (National Conference of State Legislatures 2017). As of June 2, 2017, there were 31 companies that had received permits from the California DMV to test autonomous vehicles, and the list is getting longer each month (California Department of Motor Vehicles 2017). In Berlin, Deutsche Bahn, Germany’s largest train and bus operator, is testing a driverless twelve-passenger shuttle bus (Scott 2017). Over 20 pilot or existing AV public transport programs have taken place in Europe. And the most recent AV testing permit recipient in California is a private shuttle bus operator — Bauer’s Intelligent Transportation (California Department of Motor Vehicles 2017).

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August 21, 2017 in Scholarship, Tax | Permalink | Comments (0)

Kleinbard: Business Taxes Reinvented — The Dual Business Enterprise Income Tax

Edward Kleinbard (USC), Business Taxes Reinvented — A Term Sheet, 156 Tax Notes 999 (Aug. 21, 2017):

This short overview and accompanying term sheet summarize the key features of a proposed comprehensive business tax environment termed the Dual Business Enterprise Income Tax (the Dual BEIT). The term sheet format is a useful mode of presentation for capturing in one accessible document the major policy recommendations of the Dual BEIT (or any other comprehensive tax reform proposal).

This paper makes the case that the Dual BEIT satisfies the objectives of policymakers from both parties for comprehensive business tax reform that can serve as the platform for economic growth while collecting appropriate levels of tax revenue. The arguments are developed further in two more detailed papers: Capital Taxation in an Age of Inequality, 90 So. Cal. L. Rev. 593 (2017), and The Right Tax at the Right Time, 20 Fla. Tax Rev. ___ (2017).

Patrick Driessen (Former Revenue Estimator, U.S. Treasury Department and Joint Committee on Taxation), Dual BEIT’s Effects on Revenue and Distribution, 156 Tax Notes 1015 (Aug. 21, 2017):

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August 21, 2017 in Scholarship, Tax | Permalink | Comments (0)

Sunday, August 20, 2017

The Top Five New Tax Papers

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. [648 Downloads]  Family Limited Partnerships and Section 2036: Not Such a Good Fit, by Mitchell Gans (Hofstra) & Jonathan Blattmachr (Milbank, New York)
  2. [456 Downloads]  The Front Door Opens Wide for the Backdoor Roth IRA, by Philip Manns (Liberty) & Timothy Todd (Liberty)
  3. [376 Downloads]  Federal Tax Procedure (2017 Practitioner Ed.), by John Townsend (Houston)
  4. [196 Downloads]  BEPS and European Union Law, by Sjoerd Douma (Leiden)
  5. [121 Downloads]  Codification of the Tax Law and the Emergence of the Staff of the Joint Committee on Taxation, by George Yin (Virginia)

August 20, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 18, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new work by David Weisbach (Chicago), New View Integration, 71 Tax L. Rev. (forthcoming 2017). 

Glogower (2016)David Weisbach’s new work argues that integration methods eliminating the double tax on corporate earnings should focus on alleviating the double tax on new corporate equity, but not on old equity already invested in corporate form.  Limiting integration to new equity achieves all of the efficiency gains achieved through complete integration with respect to all equity, at a lower revenue cost.

As we are often told, the corporate tax discourages investors from using the corporate form, and encourages corporations to retain earnings and to favor issuing debt over equity. Corporate integration would generally eliminate these inefficiencies by equalizing the tax rates on investments through corporations with the tax rates on investments outside the corporate sector. 

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August 18, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Measuring Law School Clinics

ClinicColleen Shanahan (Temple), Jeffrey Selbin (UC-Berkeley), Alyx Mark (George Washington) & Anna Carpenter (Tulsa), Measuring Law School Clinics, 92 Tul. L. Rev. ___ (2018):

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet.

Though we have these laudable teaching and service goals — and a vast literature describing the role of clinics in both the teaching and service dimensions — we have scant empirical evidence about whether and how clinics achieve these goals. We know from studies that law students value clinics, but do clinics prepare them to be lawyers? We also know from surveys that clinics provide hundreds of thousands of hours of free legal aid in low-income communities, but how well do clinic students serve clients?

 

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August 18, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Fennell & McAdams: Inverted Theories

Lee Anne Fennell (Chicago) & Richard H. McAdams (Chicago), Inverted Theories:

This essay makes the case for “inverting” popular versions of certain theories widely used in legal analysis. Inversion begins with the observation that the assumptions underlying a given theory are substantively false. But rather than reject the theory outright, the theory inverter sees something valuable in the structure of the theory’s logic, and looks to extract the implications of the theory given a recognition that the assumptions are false.

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

Schlunk: The Charitable Deduction For Gifts To Universities' Endowments Should Be Repealed

Herwig Schlunk (Vanderbilt), Why the Charitable Deduction for Gifts to Educational Endowments Should Be Repealed, 71 U. Miami L. Rev. 702 (2017):

The country’s collective patience for coddling private institutions of higher education is waning. At the local level, there is an effort afoot to challenge the tax-exempt status of Princeton University. At the state level, legislators in Massachusetts and Connecticut have suggested imposing taxes that would target Harvard University and Yale University. At the federal level, a number of proposals have been floated that would impact the tax treatment of universities and their endowments, including imposing an excise tax on endowment income.

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August 18, 2017 in Scholarship, Tax | Permalink | Comments (1)

Thursday, August 17, 2017

Jensen: Recent Law Review Articles On Taxation And The Constitution

Erik M. Jensen (Case Western), Taxation and the Constitution: Recent Articles, 155 Tax Notes 1607 (June 12, 2017):

This article reviews several significant articles dealing with the national taxing power and related subjects. The articles were published or generally made available within the preceding year or so.

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August 17, 2017 in Scholarship, Tax | Permalink | Comments (0)

Grimmelmann on Blowing Up the Property Law Course

PropertyJames Grimmelmann (Cornell) has posted a lively and provocative essay, Real + Imaginary = Complex: Toward a Better Property Course (66 J. Leg. Educ. 930 (2017)), on SSRN.  Here is the abstract:

"Property” in most law schools means real property: the dense, illogical, and special-purpose body of land law. But this is wrong: property also comes in personal, intangible, and intellectual flavors—all of them more important to modern lawyers than land. Real property is deeply unrepresentative of property law, and focusing our teaching on it sells the subject short. A better property course would fully embrace these other forms of property as real property’s equals. Escaping the traditional but labyrinthine classifications of real property frees teachers to bring out the underlying conceptual coherence and unity of property law. The resulting course is easier to teach, more enjoyable for students, and more relevant to legal practice. There is no excuse not to switch.

Having just posted my own "burn down the mission" screed in which I suggest dismantling most law school courses not mandated by the Uniform Bar Examination (and several that are), I enjoyed reading James's critique of property.  We both quoted Holmes's famous dictum about doing things because that's the way they've always been done.

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

Wednesday, August 16, 2017

Hayashi: The Quiet Costs Of Taxation — Cash Taxes And Noncash Bases

Andrew T. Hayashi (Virginia), The Quiet Costs of Taxation: Cash Taxes and Noncash Bases:

Tax law gives relief to “illiquid” taxpayers, those with income or wealth but no cash. This relief results in revenue losses, creates opportunities for tax avoidance, and distorts economic decisions. And yet, we don’t know how much hardship is actually created by illiquidity. This Article provides a framework for determining the magnitude of that hardship.

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August 16, 2017 in Scholarship, Tax | Permalink | Comments (3)

Viswanathan: Tax Compliance In A Decentralizing Economy

Manoj Viswanathan (UC-Hastings), Tax Compliance in a Decentralizing Economy:

Tax compliance in the United States has long relied on information from centralized intermediaries — the financial institutions, employers, and brokers that help ensure income is reported and taxes are paid. Yet while the IRS remains tied to these centralized entities, consumers and businesses are not. New technologies, such as the “sharing” economy (companies such as Airbnb, Uber, and Instacart) and the blockchain (the platform on which Bitcoin is based) are providing new, decentralized options for exchanging goods and services. Without legislative and agency intervention, these technologies pose a critical threat to the reporting system underlying domestic and international tax compliance.

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August 16, 2017 in Scholarship, Tax | Permalink | Comments (0)

Kingi & Rozema: The Effect Of Tax Expenditures On Automatic Stabilizers

Hautahi Kingi (Cornell) &  Kyle Rozema (Chicago), The Effect of Tax Expenditures on Automatic Stabilizers: Methods and Evidence,  14 J. Empirical Legal Stud. 548 (2017):

We study the effect of tax expenditures on the stabilizing power of the tax system. We propose a micro‐simulation strategy that exploits links that we identify between automatic stabilizers, tax expenditures, and effective marginal tax rates. Using U.S. tax return micro data from 2000 to 2010, we estimate that, on average, the mortgage interest deduction and the charitable contributions deduction decreased the ability of the tax system to absorb fluctuations in aggregate consumption by an average of 7.4 percent and 3.9 percent, respectively.

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August 16, 2017 in Scholarship, Tax | Permalink | Comments (0)

Tax Law And Social Norms In Mandatory Palestine And Israel

Tax LawAssaf Likhovski (Tel-Aviv University), Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge Univ. Press 2017):

This book describes how a social-norms model of taxation rose and fell in British-ruled Palestine and the State of Israel in the mid-twentieth century. Such a model, in which non-legal means were used to foster compliance, appeared in the tax system created by the Jewish community in 1940s Palestine and was later adopted by the new Israeli state in the 1950s. It gradually disappeared in subsequent decades as law and its agents, lawyers and accountants, came to play a larger role in the process of taxation. By describing the historical interplay between formal and informal tools for creating compliance, Tax Law and Social Norms in Mandatory Palestine and Israel sheds new light on our understanding of the relationship between law and other methods of social control, and reveals the complex links between taxation and citizenship.

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August 16, 2017 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Tuesday, August 15, 2017

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 August 1, 2017) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

70,871

Reuven Avi-Yonah (Mich.)

12,534

2

Michael Simkovic (USC)

36,914

Lily Batchelder (NYU)

9112

3

Paul Caron (Pepperdine)

33,387

D. Dharmapala (Chicago)

3972

4

D. Dharmapala (Chicago)

31,470

Michael Simkovic (USC)

3733

5

Louis Kaplow (Harvard)

28,394

Richard Ainsworth (BU)

3220

6

Vic Fleischer (San Diego)

23,912

Michael Graetz (Columbia)

3159

7

Ed Kleinbard (USC)

23,101

Ed Kleinbard (USC)

2969

8

James Hines (Michigan)

23,047

David Gamage (Indiana)

2720

9

Richard Kaplan (Illinois)

22,174

Andy Grewal (Iowa)

2708

10

Ted Seto (Loyola-L.A.)

22,152

David Weisbach (Chicago)

2491

11

Richard Ainsworth (BU)

21,599

Daniel Shaviro (NYU)

2285

12

Katie Pratt (Loyola-L.A.)

20,401

Louis Kaplow (Harvard)

2057

13

David Weisbach (Chicago)

19,548

Darien Shanske (UC-Davis)

1927

14

Robert Sitkoff (Harvard)

19,128

William Byrnes (Texas A&M)

1893

15

Brad Borden (Brooklyn)

18,502

Omri Marian (UC-Irvine)

1671

16

Carter Bishop (Suffolk)

18,248

Jeff Kwall (Loyola-Chicago)

1626

17

Chris Sanchirico (Penn)

17,856

Jordan Barry (San Diego)

1622

18

Francine Lipman (UNLV)

17,755

Bridget Crawford (Pace)

1575

19

Dan Shaviro (NYU)

17,740

Robert Sitkoff (Harvard)

1562

20

Jen Kowal (Loyola-L.A.)

17,613

Paul Caron (Pepperdine)

1551

21

Bridget Crawford (Pace)

17,394

Francine Lipman (UNLV)

1495

22

Dennis Ventry (UC-Davis)

16,600

Brian Galle (Georgetown)

1482

23

David Walker (BU)

15,720

Gregg Polsky (Georgia)

1420

24

Steven Bank (UCLA)

14,933

Brad Borden (Brooklyn)

1395

25

Gregg Polsky (Georgia)

14,149

Steven Bank (UCLA)

1389

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

Monday, August 14, 2017

Weisbach: New View Integration

David A. Weisbach (Chicago), New View Integration, 71 Tax L. Rev. ___ (2017):

This paper examines the design of corporate integration systems, comparing integration limited to equity issued after enactment (New Equity Integration or NEI) to integration that applies to all equity (complete integration). It shows that NEI achieves all of the efficiency benefits of complete integration at a fraction of the cost. NEI, unlike complete integration, is, moreover, supported by both the traditional view and the new view of the effects of dividend taxation. From an efficiency perspective, NEI is strictly better than complete integration.

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

Write No Matter What: Advice For Academics

Write No Matter WhatJoli Jensen (Tulsa), Write No Matter What: Advice for Academics (University of Chicago Press 2017):

With growing academic responsibilities, family commitments, and inboxes, scholars are struggling to fulfill their writing goals. A finished book — or even steady journal articles — may seem like an impossible dream. But, as Joli Jensen proves, it really is possible to write happily and productively in academe.

Jensen begins by busting the myth that universities are supportive writing environments.  She points out that academia, an arena dedicated to scholarship, offers pressures that actually prevent scholarly writing. She shows how to acknowledge these less-than-ideal conditions, and how to keep these circumstances from draining writing time and energy. Jensen introduces tools and techniques that encourage frequent, low-stress writing. She points out common ways writers stall and offers workarounds that maintain productivity. Her focus is not on content, but on how to overcome whatever stands in the way of academic writing.

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August 14, 2017 in Book Club, Legal Education, Scholarship | Permalink | Comments (1)

Sunday, August 13, 2017

The Top Five New Tax Papers

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

  1. [639 Downloads]  Family Limited Partnerships and Section 2036: Not Such a Good Fit, by Mitchell Gans (Hofstra) & Jonathan Blattmachr (Milbank, New York)
  2. [434 Downloads]  The Front Door Opens Wide for the Backdoor Roth IRA, by Philip Manns (Liberty) & Timothy Todd (Liberty)
  3. [320 Downloads]  The Rise and Fall of the Destination-Based Cash Flow Tax: What Was That All About?, by Daniel Shaviro (NYU)
  4. [241 Downloads]  The Case Against BEPS: Lessons for Coordination, by Mindy Herzfeld (Florida)
  5. [193 Downloads]  Formalizing the Code, by Sarah Lawsky (Northwestern)

August 13, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 11, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Erin Scharff (Arizona State) reviews a recent article by Steven A. Bank (UCLA), When Did Tax Avoidance Become Respectable:

Scharff (2017)The title of Steven Bank’s recent article asks a provocative question: “When Did Tax Avoidance Become Respectable?” Interested readers may be relieved to know that Bank also addresses other questions, including whether tax avoidance is respectable. Bank marshals a fascinating dataset (tracking newspaper ads about tax advice over time) to show that tax avoidance became more acceptable over the 1950s and 1960s. He then explains this change by suggesting, among other factors, that unsustainably high tax rates in the post-war period eroded public confidence in the tax system.  

As Bank notes, 2016 brought with it news of several major tax scandals:  the Panama Papers, tax fraud investigations of the world’s biggest soccer players—players important enough that I’d even heard of them, and, of course, Donald Trump’s, shall we say, very aggressive tax planning.  As a tax academic, it felt at the time like there might be a real public fury over aggressive efforts to lower tax payments.  My Facebook feed certainly suggested outrage.  These were big stories, or at least so it seemed to me.  

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August 11, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Thursday, August 10, 2017

NYU Tax Law Review Publishes New Issue

NYU Law (2016)The Tax Law Review has published a new issue (Vol. 70, No. 1 (Winter 2017)):

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

Hatfield Wins University Of Washington 2017 Faculty Scholarship Award

HatfieldMichael (2017)Michael Hatfield Receives 2017 Faculty Scholarship Award:

The University of Washington School of Law awarded professor Michael Hatfield with the School’s 2017 Faculty Scholarship Award.

Presented by the dean of UW Law for exceptionally strong scholarship, the award recognized Hatfield’s article, Cybersecurity and Tax Reform. Forthcoming in the Indiana Law Journal, it documents the history of technology at the IRS and argues that, as it is so unlikely the IRS ever will be able to develop sufficient cybersecurity technology, Congress should reform the tax law so that the IRS is a less appealing and more defensible cybersecurity target.

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

Zelinsky: The Political Process Argument For Overruling Quill

Edward A. Zelinsky (Cardozo), The Political Process Argument for Overruling Quill, 82 Brook. L. Rev. 1177 (2017):

Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? A careful assessment of the federal political process suggests that the Supreme Court itself should overturn Quill in the Court’s role as guardian of the states against federal commandeering. A combination of factors underlay this conclusion: the tactical advantage that Quill bestows in the political process upon the internet and mail order industries, the importance of the states in the structure of federalism, the centrality of sales taxes to the financing of state government, the severe impediment which Quill and its physical presence test impose upon the collection of these taxes, and the unique disadvantages of the states in the federal legislative process.

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August 10, 2017 in Scholarship, Tax | Permalink | Comments (4)

Tuesday, August 8, 2017

Journal Of Legal Education Symposium: ABA Accreditation Standard 405(c) And Security Of Position For Faculty

Journal of Legal Education (2018)American Bar Association Accreditation Standard 405(c) Symposium, 66 J. Legal Educ. 538-652 (2017):

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August 8, 2017 in Legal Education, Scholarship | Permalink | Comments (1)

Sunday, August 6, 2017

Tax Panel At Today's SEALS 2017 Annual Conference

SEALs Logo (2013)Tax panel at today's concluding session of the Southeastern Association of Law Schools 2017 Annual Conference in Boca Raton (program):

Tax Policy
This discussion group is broadly concerned with issues of taxation. Discussants address individual income tax, corporate income tax, state & local tax, estate & gift tax, tax expenditure policy, international tax and entitlements. While these disparate themes might seem only loosely related, a common thread of the difficulties of balancing equity, simplicity, incentives and transparency runs through all of them. These scholars will grapple with the central tax topics of the day and address the looming concerns that must be dealt with by all levels of government.

  • Jennifer Bird-Pollan (Kentucky) (moderator)
  • Alice Abreu (Temple)
  • Arthur Acevedo (John Marshall)
  • Neil Buchanan (George Washington)
  • Terri Lynn Helge (Texas A&M)
  • Gary Lucas (Texas A&M)
  • Shu-Yi Oei (Boston College)
  • Gregg Polsky (Georgia)
  • Diane Ring (Boston College)
  • Elaine Waterhouse Wilson (West Virginia)
  • Richard Winchester (Thomas Jefferson)

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

The Top Five New Tax Papers

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

  1. [630 Downloads]  Family Limited Partnerships and Section 2036: Not Such a Good Fit, by Mitchell Gans (Hofstra) & Jonathan Blattmachr (Milbank, New York)
  2. [396 Downloads]  The Front Door Opens Wide for the Backdoor Roth IRA, by Philip Manns (Liberty) & Timothy Todd (Liberty)
  3. [313 Downloads]  The Rise and Fall of the Destination-Based Cash Flow Tax: What Was That All About?, by Daniel Shaviro (NYU)
  4. [224 Downloads]  The Case Against BEPS: Lessons for Coordination, by Mindy Herzfeld (Florida)
  5. [188 Downloads]  Formalizing the Code, by Sarah Lawsky (Northwestern)

August 6, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (1)

Saturday, August 5, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Sloan Speck (Colorado) reviews a new work by Manoj Viswanathan (UC-Hastings), Tax Compliance in a Decentralizing Economy.

Speck (2017)In a compelling new work, Manoj Viswanathan connects two seemingly disparate hot spots in taxation, the gig economy and blockchain-based cryptocurrencies, to argue that increasing economic decentralization presents a significant and underappreciated threat to tax compliance. For Viswanathan’s paper, decentralization essentially reflects the rise of direct peer-to-peer transactions through virtual means, rather than through institutional intermediaries. Companies such as Airbnb and Uber match sellers of lodging and transportation to buyers, while cryptocurrencies such as Bitcoin allow secure transfers of value without banks. Independently, the gig economy and cryptocurrencies present serious issues for tax administration. When combined, Viswanathan argues, individuals could buy and sell entirely outside of taxing authorities’ traditional purview, which would enable rampant noncompliance. For Viswanathan, the solution is enhanced information reporting rules to account for decentralization, including incentives to disclose one’s own identity in transactions.

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August 5, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Turing on AI and Lawyer-Automatons

As I've mentioned previously, the Savannah Law Review is hosting a colloquium on September 15, 2017 entitled The Rise of the Automatons, examining the legal implications of automation.  Ominous predictions like "the Singularity is coming" usually provoke me, and this one prompted my project for this summer, Halting, Intuition, Heuristics, and Action: Alan Turing and the Theoretical Constraints on AI-Lawyering, now available.  

I'm unimpressed with frenzied reactions generally and in this area particularly. Here's the abstract:

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August 5, 2017 in Colloquia, Legal Education, Scholarship, Teaching | Permalink | Comments (1)

Friday, August 4, 2017

Tax Panels At Today's SEALS 2017 Annual Conference

SEALs Logo (2013)Tax panels at today's Southeastern Association of Law Schools 2017 Annual Conference in Boca Raton (program):

Issues in Corporate and International Taxation
Panelists explore the corporate and international tax rules, with particular attention to enforcement and implementation. The papers cover the consequences of failed start-ups, worldwide taxation and competitiveness, private equity fee waivers, the classification of business entities for tax purposes, and general issues of tax compliance. The papers address both theoretical and practical consequences of these various matters.

  • Francine Lipman (UNLV) (moderator)
  • Cliff Fleming (BYU)
  • Shu-Yi Oei (Boston College)
  • Gregg Polsky (Georgia)
  • Richard Winchester (Thomas Jefferson)

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August 4, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Cui: A Critical Appraisal Of Destination-Based Cash-Flow Taxation

Wei Cui (British Columbia), Destination-based Cash-Flow Taxation: A Critical Appraisal, 67 U. Tor. L.J. 301 (2017):

This article offers the first comprehensive scholarly response to proposals for destination-based, cash-flow taxation (DCFT). DCFT proposals have attracted heightened public attention in 2016 because of the incorporation of one version into the US House Republican blueprint for tax reform and Donald Trump’s subsequent election to the White House. They also continue to fascinate tax specialists by suggesting that corporate profit can be taxed not only in countries of ‘source’ or ‘residence’ but also (or even exclusively) in the countries where sales to final consumers occur. This article clarifies the logical structure of DCFT proposals and exposes substantial gaps between their rhetoric and technical details.

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August 4, 2017 in Scholarship, Tax | Permalink | Comments (0)

Thursday, August 3, 2017

Tax Presentations At Today's Big 10 Junior Scholars Conference At Indiana

Big 102017 Big 10 Junior Scholars Conference:

  • Hayes Holderness (Richmond; former Illinois VAP), Strategic Non-Enforcement
  • James Puckett (Penn State), Tax Exceptionalist Rulemaking

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

Elsevier Acquires bepress

EBFollowing up on my previous post, Elsevier Acquires SSRN:  Press Release, Elsevier Acquires bepress, a Leading Service Provider Used by Academic Institutions to Showcase Their Research:

Elsevier, the global information analytics business specializing in science and health, today acquired bepress, a Berkeley, California-based business that helps academic libraries showcase and share their institutions’ research for maximum impact. Founded by three University of California, Berkeley professors in 1999, bepress allows institutions to collect, organize, preserve and disseminate their intellectual output, including preprints, working papers, journals or specific articles, dissertations, theses, conference proceedings and a wide variety of other data.

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August 3, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Holderness Presents Questioning Quill At Ohio State

Holderness (2017)Hayes R. Holderness Jr. (Richmond) presented Questioning Quill yesterday at Ohio State as part of its Summer Faculty Workshop Series:

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

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August 3, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Wednesday, August 2, 2017

Brauner: Towards More Behaviorally-Intelligent Regulation

Yariv Brauner (Florida), Why Examples? Towards More Behaviorally-Intelligent Regulation:

Tax regulation authors habitually infuse regulations with explanatory examples. These examples are viewed favorably by both the government that encourages their drafting and the taxpayers who regularly rely on such examples to assist them in dealing with the notoriously complex tax rules. Despite the ubiquity of these examples, there is no published guidance for their drafting, their use, or their interpretation. The first original contribution of this Article is the exposition and classification of the advantages and deficiencies in the current use of examples in tax regulations. This Article is the first to question the rationale behind the ubiquitous use of examples in tax regulations. The Article uses data collected by original surveys of expert tax professionals and government employees involved in drafting tax regulations.

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

McLaughlin: Tax-Deductible Conservation Easements And The Essential Perpetuity Requirements

Nancy A. McLaughlin (Utah), Tax-Deductible Conservation Easements and the Essential Perpetuity Requirements, 36 Va. Tax Rev. ___ (2017):

Property owners who make charitable gifts of perpetual conservation easements are eligible to claim federal charitable income tax deductions. Through this tax-incentive program the public is investing billions of dollars in easements encumbering millions of acres nationwide. In response to reports of abuse in the early 2000s, the Internal Revenue Service (Service) began auditing and litigating questionable easement donation transactions, and the resulting case law reveals significant failures to comply with the deduction’s requirements. Recently, the Service has come under fire for enforcing the deduction’s “perpetuity” requirements, which are intended to ensure that the easements will protect the subject properties’ conservation values in perpetuity and that the public’s investment in the easements will not be lost. Critics claim that the agency is improperly discouraging easement donations by denying deductions for technical foot faults, and some have called for a change to the law that would allow taxpayers to cure their failures to comply with the perpetuity requirements if they are discovered on audit.

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

Tuesday, August 1, 2017

Yin: Tax Law Codification And The Emergence Of The Joint Committee On Taxation Staff

George K. Yin (Virginia), Codification of the Tax Law and the Emergence of the Staff of the Joint Committee on Taxation:

In 1926, Congress created the Joint Committee on Taxation (JCT) and its staff. This article explains how, partly by design but largely by happenstance, the JCT staff helped change the nature of the legislative process. By serving at or near the intersection of three great divides in government — those between the parties, the houses of Congress, and the legislative and executive branches — the staff demonstrated the value of unelected professionals assisting directly in the formation of legislation and led Congress to rely more on its own resources in the legislative process rather than those of the executive branch.

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

Winners Of The 2017 Tax Analysts Student Writing Competition

Tax Analysys Logo (2013)2017 Tax Analysts Student Writing Competition:

Tax Notes:

  • Jeremy Mandell (Illinois)
  • Christopher Massie (Illinois)
  • Zoe Nutter (Sydney)

State Tax Notes:

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August 1, 2017 in Legal Education, Scholarship, Tax, Teaching | 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 July 1, 2017) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

70,375

Reuven Avi-Yonah (Mich.)

12,771

2

Michael Simkovic (USC)

36,723

Lily Batchelder (NYU)

9186

3

Paul Caron (Pepperdine)

33,320

D. Dharmapala (Chicago)

4039

4

D. Dharmapala (Chicago)

31,256

Michael Simkovic (USC)

3900

5

Louis Kaplow (Harvard)

28,327

Michael Graetz (Columbia)

3277

6

Vic Fleischer (San Diego)

23,861

Richard Ainsworth (BU)

3146

7

James Hines (Michigan)

23,003

Ed Kleinbard (USC)

2969

8

Ed Kleinbard (USC)

22,943

David Gamage (Indiana)

2699

9

Richard Kaplan (Illinois)

22,146

Dan Shaviro (NYU)

2511

10

Ted Seto (Loyola-L.A.)

22,096

David Weisbach (Chicago)

2506

11

Richard Ainsworth (BU)

21,343

Louis Kaplow (Harvard)

2104

12

Katie Pratt (Loyola-L.A.)

20,357

William Byrnes (Texas A&M)

2022

13

David Weisbach (Chicago)

19,477

Darien Shanske (UC-Davis)

1893

14

Robert Sitkoff (Harvard)

19,048

Robert Sitkoff (Harvard)

1686

15

Brad Borden (Brooklyn)

18,424

Paul Caron (Pepperdine)

1665

16

Carter Bishop (Suffolk)

18,203

Jeff Kwall (Loyola-Chicago)

1650

17

Chris Sanchirico (Penn)

17,807

Omri Marian (UC-Irvine)

1649

18

Francine Lipman (UNLV)

17,655

Jordan Barry (San Diego)

1625

19

Dan Shaviro (NYU)

17,616

Brian Galle (Georgetown)

1551

20

Jen Kowal (Loyola-L.A.)

17,583

Bridget Crawford (Pace)

1533

21

Bridget Crawford (Pace)

17,297

Francine Lipman (UNLV)

1508

22

Dennis Ventry (UC-Davis)

16,560

Steven Bank (UCLA)

1474

23

David Walker (BU)

15,692

Brad Borden (Brooklyn)

1388

24

Steven Bank (UCLA)

14,884

Vic Fleischer (San Diego)

1388

25

Gregg Polsky (Georgia)

14,052

Gregg Polsky (Georgia)

1387

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

Monday, July 31, 2017

Fall 2017 Law Review Article Submission Guide

SubmissionsNancy Levit (UMKC) & Allen Rostron (UMKC) have updated their incredibly useful document, which contains two charts for the Fall 2017 submission season covering 204 law reviews.

The first chart (pp. 1-50) contains information gathered from the journals’ websites on:

  • Methods for submitting an article (such as by e-mail, ExpressO, regular mail, Scholastica, or Twitter)
  • Any special formatting requirements
  • How to request an expedited review
  • How to withdraw an article after it has been accepted for publication elsewhere

The second chart (pp. 51-57) contains the ranking of the law reviews and their schools under six measures:

  • U.S. News: Overall Rank
  • U.S. News: Peer Reputation Rating
  • U.S. News: Judge/Lawyer Reputation Rating
  • Washington & Lee Citation Ranking
  • Washington & Lee Impact Factor
  • Washington & Lee Combined Rating

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July 31, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Sunday, July 30, 2017

Should The Government Continue To Exempt Churches From Taxation?

J. Michael Martin (Vice President & Legal Counsel, Evangelical Council for Financial Accountability), Should the Government Be in the Business of Taxing Churches?, 29 Regent U. L. Rev. 309 (2017):

While some legal scholars have suggested the legitimacy of church tax exemption may be on the decline in the modern era, this Article offers reminders of the constitutional, historical, and public policy rationales that have supported church tax exemption since the establishment of our federal government. Ultimately, it contends that protection for religious freedom guaranteed by the Framers of the Constitution precludes the federal government from levying taxes on churches, and furthermore, that the government may not constitutionally revoke the historic tax-exempt status of churches based on their religious nature.

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July 30, 2017 in Scholarship, Tax | Permalink | Comments (5)

The Top Five New Tax Papers

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. [611 Downloads]  Family Limited Partnerships and Section 2036: Not Such a Good Fit, by Mitchell Gans (Hofstra) & Jonathan Blattmachr (Milbank, New York)
  2. [376 Downloads]  The Front Door Opens Wide for the Backdoor Roth IRA, by Philip Manns (Liberty) & Timothy Todd (Liberty)
  3. [306 Downloads]  The Rise and Fall of the Destination-Based Cash Flow Tax: What Was That All About?, by Daniel Shaviro (NYU)
  4. [216 Downloads]  The Case Against BEPS: Lessons for Coordination, by Mindy Herzfeld (Florida)
  5. [180 Downloads]  Formalizing the Code, by Sarah Lawsky (Northwestern)

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

Saturday, July 29, 2017

This Week's Ten Most Popular TaxProf Blog Posts