TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Monday, November 14, 2016

Blank Presents The Timing Of Tax Transparency Today In London

Blank (2016)Joshua D. Blank (NYU) presents The Timing of Tax Transparency, 90 S. Cal. L. Rev. ___ (2017), at Queen Mary University of London School of Law today as part of its Centre for Commercial Law Studies Speaker Series:

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

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November 14, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

McLaughlin Presents Keeping The Perpetual In Tax-Deductible Perpetual Conservation Easements Today At Loyola-L.A.

McLaughlinNancy McLaughlin (Utah) presents Keeping the Perpetual in Tax-Deductible Perpetual Conservation Easements at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Ellen Aprill and Katherine Pratt:

Section § 170(h) of the Internal Revenue Code authorizes a federal charitable income tax deduction for the donation of conservation easements and façade easements provided, among other things, that the easements are “granted in perpetuity” and their conservation purposes are “protected in perpetuity.” This deduction has been one of the driving forces behind the dramatic growth in the use of easements as land protection and historic preservation tools over the last several decades. The deduction has also, however, been subject to abuse. Over the past decade, courts have issued more than eighty opinions in cases involving challenges to claimed § 170(h) deductions. This case law reveals various forms of noncompliance and abuse, including persistent overvaluation of easements, failure to properly substantiate the claimed deductions, failure to satisfy one or more of the conservation purposes tests set forth in § 170(h), and failure to comply with “perpetuity” requirements set forth in § 170(h) and the Treasury Regulations.

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November 14, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

NTA 109th Annual Conference On Taxation

National Tax Association (2016)The three-day National Tax Association 109th Annual Conference on Taxation concluded Saturday in Baltimore. Saturday's highlights included:

Session 72:  Taxation and Wealth
Session Organizer:  John Brooks (Georgetown) 
Session Chair:  John Brooks (Georgetown)
Presentations:

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November 14, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1285:  After Six Year Delay And One Court Order, IRS Denies Two Of Three Tea Party Applications For Tax-Exempt Status

IRS Logo 2Washington Times, After Years of IRS Delay, 2 Tea Party Groups Denied Tax-Exempt Status:

Nearly seven years after it applied to the IRS for nonprofit status, the Albuquerque Tea Party has finally been given a decision: Denied.

The tax agency, under orders from a federal judge, is belatedly tackling the remaining tea party cases that it delayed for years, and so far the tea party isn’t doing well. Only one of the three groups in the case was approved, and the other two, including Albuquerque, got notices of proposed denials last week.

The applicants will have a chance to appeal, but the denials aren’t sitting well with the groups, whose attorney said it’s more evidence that the IRS continues to single out the tea party for abuse. “It is clear that we still have an IRS that is corrupt and incapable of self-correction,” said Jay Sekulow, chief counsel at the American Center for Law and Justice, which represented a number of tea party groups in a case against the tax agency.

The one group that was approved was Unite in Action, a Michigan-based organization that first applied for tax-exempt status more than six years ago. The Albuquerque Tea Party and Tri Cities Tea Party from Washington state were notified of proposed denials.

Still to come is a decision on Texas Patriots Tea Party, a group that is part of a separate class-action lawsuit out of Ohio. A judge in that case ruled late last month that the IRS was likely violating the group’s First Amendment rights by delaying its application and ordered the tax agency to process and decide on the application.

The IRS, which declined to comment on the new decisions, admitted in court that it did subject the tea party groups to intrusive scrutiny, singling them out because of their political viewpoints and forcing them to go through hurdles that other groups didn’t face.

Jay Sekulow (American Center for Law and Justice), Continuing the Fight Against IRS Corruption in Federal Court:

As we continue our fight at the ACLJ against the lawless, unconstitutional Obama Administration’s IRS targeting of grassroots conservatives, we are achieving important victories.

But the fight also continues in federal court to ensure justice for all 38 of our clients from 22 states across the country. We must not stop fighting the IRS corruption until there is true justice and assurances that no American will ever be targeted by the IRS for his or her beliefs ever again.

Three of our remaining clients have received determinations from the IRS in recent weeks after a significant victory in which a federal judge ordered the IRS to issue determinations within 30 days.

Michigan-based Unite in Action – after waiting for more than six years – has been approved by the IRS.

Two other clients – Albuquerque Tea Party from New Mexico and Tri Cities Tea Party from Washington State – received proposed denials regarding their applications. The lengthy delays in receiving these determinations underscores the continuing problems inside the Obama Administration’s IRS.

It is clear that we still have an IRS that is corrupt and incapable of self-correction. We're pleased Unite in Action has finally received its approval after lengthy delays. We're now in the process of reviewing the proposed denials in the other two cases as we aggressively move forward with our federal lawsuit against the IRS to ensure it is bound by the U.S. Constitution and the law protecting the fundamental freedoms of speech and association that serve as the bedrock to this great nation.

As we continue fighting against the Executive lawlessness in federal court, please sign our petition to join the fight – for freedom and for the Constitution.

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November 14, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (5)

TaxProf Blog Weekend Roundup

Sunday, November 13, 2016

NY Times:  Donald Trump’s Proposed Tax Changes May Encourage Dynastic Wealth

Trump (President Elect)New York Times: Trump’s Changes to the Tax Codes May Encourage Dynastic Wealth, by Paul Sullivan:

If Donald J. Trump follows through on his campaign promises, a host of taxes that affect only the very richest Americans may be eliminated, along with almost all tax incentives to be philanthropic. As a result, wealthy families may find it much easier to amass dynastic levels of wealth.

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November 13, 2016 in Tax | Permalink | Comments (3)

The Top 5 Tax Paper Downloads

SSRN LogoThis week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list. The #1 paper is now #19 in all-time downloads among 12,338 tax papers:

  1. [4,345 Downloads]  Families Facing Tax Increases Under Trump's Latest Tax Plan, by Lily L. Batchelder (NYU)
  2. [444 Downloads]  Aggressive Tax Planning & the Ethical Tax Lawyer, by Heather M. Field (UC-Hastings)
  3. [285 Downloads]  The Up-C Revolution, by Gregg D. Polsky (Georgia) & Adam H. Rosenzweig (Washington University)
  4. [254 Downloads]  Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, by Elizabeth Ruth Carter (LSU)
  5. [242 Downloads]  Taxation and Human Rights: A Delicate Balance, by Reuven Avi-Yonah (Michigan) & Gianluca Mazzoni (S.J.D. 2017, Michigan)

November 13, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

The IRS Scandal, Day 1284:  Podesta Friend At DOJ Led Cover-Up Of IRS Scandal

IRS Logo 2Polizette, Podesta Friend at DOJ Led Cover-Up of IRS Scandal:

Senior Department of Justice official Peter J. Kadzik, newly exposed by WikiLeaks as colluding with Hillary Clinton’s campaign chairman, is the same Obama appointee who helped cover up the Internal Revenue Service’s deliberate targeting of conservative and Tea Party groups. ...

[Lois] Lerner refused to testify at congressional hearings, instead invoking her Fifth Amendment rights to avoid possible self-incrimination. Congressional investigators found that the IRS targeted right-of-center 501(c)(4) nonprofit advocacy groups during the 2010 and 2012 election cycles. They determined that Lerner organized an unprecedented crackdown on Tea Party and conservative groups and then attempted to scapegoat those nonprofits, blaming them for the harsh treatment they received at her instigation. ...

At DOJ, Kadzik also put the kibosh a year ago on any possible criminal prosecution of Lois Lerner. ... Kadzik was dismissive. "Ineffective management is not a crime," he wrote. "The Department of Justice's exhaustive probe revealed no evidence that would support a criminal prosecution. What occurred is disquieting and may necessitate corrective action — but it does not warrant criminal prosecution."

Kadzik wrote there was no proof of bad intent on Lerner's part and that she seemed to try to correct the inappropriately tough scrutiny on conservative and Tea Party nonprofits once she "recognized that it was wrong." "In fact, Ms. Lerner was the first IRS official to recognize the magnitude of the problem and to take concerted steps to fix it," he wrote. ...

Kadzik is tied to the Democratic Party Establishment and is a donor to Democrat candidates. Using his private Gmail account, on May 19, 2015, Kadzik tipped off John Podesta, Hillary's campaign chairman and former White House chief of staff in Bill Clinton's administration, about an upcoming hearing, according to a WikiLeaks document dump. ...

Earlier this year, WikiLeaks published a Sept. 8, 2008 email from Podesta, then serving on the Obama transition team, to Cassandra Butts of the Obama campaign. Podesta boasted in it that Kadzik — who represented him when he was accused of procuring a job for Bill Clinton paramour Monica Lewinsky as a way to keep her quiet — was a "fantastic lawyer" who "kept me out of jail." 

 

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November 13, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (5)

Saturday, November 12, 2016

This Week's Ten Most Popular TaxProf Blog Posts

preLaw Magazine Grades Law Schools On Breadth Of Tax Curriculum:  2 A's, 9 A-'s, 8 B+'s

Prelaw 3Top Schools for Taxation, preLaw 49 (Fall 2016):

There has never been a more exciting time to be a tax lawyer.

That's straight from the mouth of Paul Caron, professor of law at Pepperdine university School of Law and the publisher of TaxProf Blog.

Employment prospects are currently and will likely remain high, compared to other areas of law, making the specialty a fairly safe one to enter. Tax law is not subject to booms and busts like real estate, said Caron.

"There are always tax needs, and tax professionals need to meet those needs," Caron said. "It's never really a booming practice, but the upside is, it's never really a down practice area."

One hundred and nine schools offer either concentrations or certificates in taxation, but just two schools earned A grades [90% or higher] from preLaw magazine for the breadth of their curricular offerings [30% for a concentration, 24% for a clinic, 12% for a center, 12% for an externship, 9% for a journal, 8% for a student group and 5% for a certificate]:  Loyola Law School, Los Angeles and Benjamin N. Cardozo School of Law, Yeshiva University. ... Nine schools earned A- [75%-89%], and eight more earned B+.

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November 12, 2016 in Law School Rankings, Legal Education, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1283:  IRS Handed Defeat in Court Ruling Against Tea Party Group It Stiffed

IRS Logo 2Townhall, IRS Handed Defeat in Court Ruling Against Tea Party Group It Stiffed:

The Texas Patriots Tea Party emerged as victor in its case against the IRS. On Friday, U.S. District Court Judge Michael R. Barrett ruled that the agency must process TPTP's application for tax exempt status after a long (and seemingly politically motivated) delay.

It's now clear the IRS segregated TPTP's application in 2012 because it was a conservative political organization. It was just one instance in a larger scandal in which the IRS targeted conservatives and unfairly stalled their applications.

The agency has insisted it no longer practices such political bias, yet the court said that doesn't solve TPTP's issue. "Regardless of the fact the IRS purports to have stopped applying the inappropriate political advocacy criteria in 2013, the evidence is undisputed that the IRS continued to delay processing TPTP’s until August of 2016," the judge wrote in his decision."

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November 12, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (5)

Friday, November 11, 2016

Weekly Tax Highlight And Roundup

This week, Joe Kristan (CPA & Shareholder, Roth & Company (Des Moines, Iowa); Editor, Tax Update Blog) discusses a recent Tax Court case that illustrates the need for a “'sauce for the gander' rule that allows taxpayers to receive penalty payments from the IRS on the same basis as the IRS can impose penalties on taxpayers taking lame positions."

KristanI’ll take your house, but the money I give you is for sweeping it.

The keys will be extra. It’s common to see a Tax Court decision where you wonder why they bothered to go to the trouble of litigating. It’s unusual when the puzzling litigant is the IRS.

When the real estate bubble popped in 2008, mortgage lenders were swamped with borrowers who couldn’t keep up the payments. To deal with all of the repossessions, they came up with deals to encourage delinquent borrowers to leave quietly without wrecking the house.

A California couple took advantage of such a deal when they got underwater on a second home in North Carolina (my emphasis):

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November 11, 2016 in Tax, Weekly Tax Roundup | Permalink | Comments (0)

Weekly SSRN Tax Article Review And Roundup

This week, David Gamage (UC-Berkeley, moving to Indiana) reviews a new article by Susan Morse (Texas) and Eric Allen (USC), Innovation and Taxation at Start-Up Firms, Tax Law Review, Vol. 69, No. 3, 2016.

Gamage (2017)Tax planning occupies a substantial portion of the legal work done by businesses. But this does not mean that every business engages in significant tax planning. In their new paper, Morse and Allen show that early-stage startup companies have very low appetites for tax planning.

The essence of how they reach this conclusion is rather simple. Early-stage startup companies are resource constrained. These companies cannot pursue all avenues for maximizing future profitability, and must instead focus only on those tasks that have the most immediate payout or the highest potential for very large future payouts. Many forms of profitable tax planning do not meet these criteria.

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November 11, 2016 in Scholarship, Tax | Permalink | Comments (0)

Tax Policy In The Trump Administration

NTA 109th Annual Conference On Taxation

National Tax Association (2016)The three-day National Tax Association 109th Annual Conference on Taxation continues today in Baltimore. Today's highlights include:

Session 38: Multinational M&A and Incorporations
Session Organizer:  Tim Dowd (Joint Committee on Taxation)
Session Chair:  Jane Gravelle (Library of Congress)
Presentations:

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November 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

69th University Of Chicago Tax Conference

Chicago (2016)The two-day 69th University of Chicago Tax Conference kicks off today. Tax Prof speakers include:

  • Itai Grinberg (Georgetown)
  • Kristin Hickman (Minnesota)
  • Julie Roin (Chicago)

The six sessions are:

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November 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

House Ways & Means Committee Democrats Seeks To Hire Business Tax Staffer

Ways & Means (2016)The House Ways & Means Committee seeks to hire an experienced attorney/policy expert who specializes in corporate tax law and the taxation of pass-through entities to help set the legislative agenda of the Ranking Member and the Democratic Members of the Committee:

Responsibilities include: analyzing, developing, and drafting legislative proposals; briefing Members on a variety of tax issues; and preparing for hearings and Committee markups. Exceptional oral and written skills and the ability to express ideas clearly, quickly and concisely are essential to the role. Working knowledge of estate tax, employee compensation, or other niche tax areas is a plus.

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November 11, 2016 in Congressional News, Tax | Permalink | Comments (1)

The IRS Scandal, Day 1282:  True The Vote Asks Supreme Court To OK Lawsuits Against Lois Lerner, Former IRS Commissioner For Damages For Violating Their Constitutional Rights

IRS Logo 2 The Center for Constitutional Jurisprudence at the Claremont Institute, Constitutional Jurisprudence Clinic at Chapman Law School, Public Interest Legal Foundation and Cleta Mitchell and other lawyers at Foley & Lardner have filed a cert. petition (appendix) asking the Supreme Court to review True the Vote’s case against the IRS for the IRS’s illegal targeting of conservative organizations:

True the Vote won a major victory before the U.S. Court of Appeals for the D.C. Circuit back in August, when that Court reinstated its claims against the IRS itself, holding that they were not moot even after the IRS finally granted True the Vote’s application for non-profit status, because the IRS has not demonstrated that it has ceased its illegal conduct. But the D.C. Circuit also held that the individual IRS officials involved in the unconstitutional targeting scheme, including Lois Lerner and the former IRS Commissioner Douglas Shulman, were immune from suit for what one of the judges described as their “egregious unconstitutional conduct.” That aspect of the case is what True the Vote is asking the Supreme Court to review. There are sympathetic courts elsewhere in the country that seem to recognize the problem if the perpetrators of this unconstitutional targeting scheme are not held to account. The Sixth Circuit Court of Appeals in Ohio stated in parallel litigation that “among the most serious allegations a federal court can address are that an Executive agency has targeted citizens for mistreatment based on their political views. No citizen—Republican or Democrat, socialist or libertarian—should be targeted or even have to fear being targeted on those grounds.” And the district court for the Southern District of New York in Manhattan has allowed lawsuits to proceed against IRS officials by other organizations who fell victim to the same targeting scheme that caught True the Vote in its net.

We close the brief with a reminder from Abraham Lincoln’s Lyceum Address: If the laws be continually disregarded with impunity, “the alienation of the American People’s affections from the Government [will be] the natural consequence.” Lincoln was addressing mob rule by private citizens, of course, but the danger is even more pronounced when the lawlessness is engaged in by those at the highest levels of government. We expect to learn sometime in January whether the Supreme Court will take this case.

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November 11, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

Thursday, November 10, 2016

Lucas Presents Psychological Barriers To An Efficient Carbon Tax At George Mason

LucasGary Lucas (Texas A&M) presented Psychological Barriers to an Efficient Carbon Tax at George Mason yesterday as part of its Public Choice Seminar Series hosted by the Center for Study of Public Choice:

The Paris Agreement on climate change and the federal government’s recent efforts to regulate carbon emissions suggest that the United States is starting to take global warming seriously. According to economists, a carbon tax would be the most effective and economically efficient way to address the problem. The American public, however, strongly opposes taxing carbon. The public’s opposition is not rooted in climate change denialism. In fact, the public supports government action on global warming, but it eschews taxation in favor of “green” subsidies and command-and-control regulations that would make global warming mitigation incredibly expensive and perhaps even infeasible.

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

52 Tax Profs Urge Senate To Vote On Tax Court Nominees

SCLetter From 52 Tax Professors to Sen. Mitch McConnell and Harry Reid (Nov. 10, 2016):

We the 52 undersigned tax law professors, academics, and clinicians strongly encourage you to set the U.S. Tax Court nominees, nominee numbers 510 and 511 (Vik Edwin Stoll and Elizabeth Ann Copeland), for an immediate floor vote. Both nominees were unanimously, favorably reported out of the Senate Finance Committee on April 18, 2016 and await a confirmation vote. The Senate received each nomination over a year ago. Vik Edwin Stoll’s nomination was received by the Senate on November 9, 2015, more than one year ago. Elizabeth Ann Copeland’s nomination was received by the Senate on May 4, 2015, over eighteen months ago.

These two nominees have been fully vetted and favorably reported out of the Senate Finance Committee. Moreover, appointment to the U.S. Tax Court has traditionally been a nonpartisan appointment, based on merit. The Senate should therefore look past any partisan concerns and bring these nominees to the floor for a vote.

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November 10, 2016 in Congressional News, Legal Education, Tax | Permalink | Comments (6)

Batchelder:  How To Strengthen Wealth Transfer Taxation

2016-Delivering-equitable-growthLily L. Batchelder (NYU), The 'Silver Spoon' Tax: How to Strengthen Wealth Transfer Taxation, in Washington Center for Equitable Growth, Delivering Equitable Growth: Strategies for the Next Administration (Fall 2016):

Wealth transfer taxes are a critical policy tool for mitigating economic inequality, including inequality of opportunity. They are also relatively efficient. This short essay summarizes why and how wealth transfer taxes should be strengthened. Reform options that our next President should consider include increasing the wealth transfer tax rate, broadening the base, repealing stepped-up basis, addressing talking points against wealth transfer taxes with little or no factual basis, and converting the estate and gift taxes into a direct tax on the recipients of large inheritances. ...

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November 10, 2016 in Scholarship, Tax, Think Tank Reports | Permalink | Comments (4)

Ireland Appeals EU's $14.3 Billion Apple Tax Bite

EUANew York Times, Dublin Appeals $14.3 Billion Tax Charge Against Apple:

The Irish government on Wednesday filed an appeal seeking to stop efforts by European authorities to force Apple to pay the country $14.3 billion to cover what antitrust officials say are unpaid taxes.

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November 10, 2016 in Tax | Permalink | Comments (0)

NTA 109th Annual Conference On Taxation

National Tax Association (2016)The three-day National Tax Association 109th Annual Conference on Taxation kicks off today in Baltimore.  Today's highlights include:

Session 5:  Scope of Regulatory Authority: From Interpretation to Implementing Policy:

  • Session Organizer:  John Brooks (Georgetown)
  • Session Chairs:  George Plesko (Connecticut), Stephen Shay (Harvard)
  • Presentations:  Daniel Hemel (Chicago), Steve Johnson (Florida State), Steven Rosenthal (Tax Policy Center)

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

Number Of Americans Renouncing Their U.S. Citizenship Last Quarter Was Second Highest In History

International Tax Blog, 2016 Third Quarter Published Expatriates — Second Highest Ever:

Today the Treasury Department published the names of individuals who renounced their U.S. citizenship or terminated their long-term U.S. residency (“expatriated”) for the third quarter of 2016. The number of published expatriates for the quarter was 1,380, the second highest quarterly number ever.

ITB

November 10, 2016 in Tax | Permalink | Comments (1)

Fordham Hosts Conference Today On BEPS And International Corporate Tax Avoidance

The IRS Scandal, Day 1281:  Another Federal Court Says The IRS Continues To Harass Conservative Groups

IRS Logo 2 NorCal Tea Party Patriots v. IRS, No. 1:13cv341 (D.C. S.D. OH Nov. 4, 2016) (citations omitted):

Did the IRS subject TPTP to viewpoint discrimination in the manner in which it has processed TPTP’s § 501(c)(4) application for tax-exempt status and is that discrimination still ongoing? The Court concludes in the following analysis that TPTP has established at least a likelihood of success on the merits on those questions. The Court first will explain why granting TPTP preliminary injunctive relief to remedy the ongoing harm against TPTP is appropriate. It then will follow from that analysis why the Government is not entitled to summary judgment.

A. Motion for Preliminary Injunction
Plaintiffs seek a preliminary injunction requiring the IRS to process TPTP’s § 501(c)(4) application in the ordinary course of business. The Government responds that a preliminary injunction is neither justified nor appropriate. ...

2. Likelihood of Success on the Merits
TPTP has made a strong showing of a likelihood of success on the merits on Count II of the Second Amended Class Action Complaint. TPTP alleges that the IRS discriminated against it on the basis of its political viewpoint in the processing of its § 501(c)(4) application. TPTP has put forward evidence demonstrating that the IRS targeted TPTP’s application for special scrutiny and delayed processing because it met the political advocacy criteria found to be inappropriate in the 2013 TIGTA Report. Although the IRS had changed the political advocacy criteria language in May 2012 to focus more on political activities than on party names, an EO screener identified TPTP as a “TEA PARTY” case on the screening checklist in September 2012. Additionally, the IRS Rule 30(b)(6) deponent admitted TPTP’s application was segregated as a Tea Party case. The IRS has held TPTP’s application without further processing since June 2013 after requesting and receiving additional information from TPTP. Processing applications “pursuant to different standards and at different rates depending upon the viewpoint of the applicants [is] a blatant violation of the First Amendment.” Z Street v. Koskinen, 791 F.3d 24, 32 (D.C. Cir. 2015).

The Government responds that the 2015 TIGTA Report proves that the IRS ceased using the inappropriate political advocacy criteria to target dissenting groups at the screening stage based on their political viewpoint no later than June 2013. The Government argues that the Court should not issue an injunction to enjoin behavior which the IRS already has stopped. However, the IRS’s argument misses the mark.

Regardless of the fact the IRS purports to have stopped applying the inappropriate political advocacy criteria in 2013, the evidence is undisputed that the IRS continued to delay processing TPTP’s until August of 2016. The Government appears not to see the forest through the trees when it uses the existence of this lawsuit as grounds to continue the delay that is the subject of this lawsuit. The evidence strongly suggests that the IRS initiated the delay because TPTP’s application was perceived at the screening stage to be a Tea Party case. The Court is not persuaded that the discriminatory animus that motivated the initial decision to segregate and delay TPTP’s application can be neatly separated from the delay that now has continued for three years. Accord True the Vote, Inc. v. Internal Revenue Serv., 831 F.3d 551, 562 (D.C. Cir. 2016) (“It is not at all clear why the IRS proposes that not ceasing [discriminatory conduct] becomes cessation if the victim of the conduct is litigating against it.”).

Moreover, the Court is not convinced that the IRS’s general litigation hold policy justifies the delay in processing TPTP’s application. The Government admitted that it has discretion whether to apply the general litigation hold policy in specific cases during oral arguments in the case of Z Street v. Koskinen, No. 15-5010 (D.C. Cir. May 4, 2015), another case in which a tax-exemption applicant alleged viewpoint discrimination by the IRS.8 Moreover, the litigation hold policy should arise only when an applicant’s tax exemption status is at issue in the litigation. TPTP is not challenging in this suit whether it is entitled to § 501(c)(4) tax-exempt status. There is no disputed issue in this litigation which will affect the IRS’s determination of whether TPTP qualifies for § 501(c)(4) status. Thus, there is no basis to stay determination of the application pending the outcome of this lawsuit. Additionally, the Government has not proven that the so-called cease and desist letter justifies the purported litigation hold. TPTP asked the IRS to process its application during its Rule 30(b)(6) deposition, well after Plaintiffs’ counsel issued the cease and desist letter. Plaintiffs’ counsel later explained at a Court conference that the sole purpose of the cease and desist letter was for the IRS to direct communications regarding the processing of TPTP’s application through its counsel. Yet the IRS has persisted to delay processing the application. Given these facts, TPTP has established a least a likelihood of success on the merits of proving that the IRS’s refusal to finish processing TPTP’s § 501(c)(4) application is a continuation of the discriminatory treatment that appears to have begun when the IRS segregated the application as a Tea Party case.

Likewise, the Government has not proven that a litigation hold was necessary to protect its agents from being named as defendants in this suit. Plaintiffs originally asserted multiple claims against IRS managerial and line-level employees in the Second Amended Class Action Complaint. The Court dismissed the claims against the employees in their individual capacities in its July 17, 2014 Order. It is unclear on what reasonable grounds the agents who process TPTP’s application could be sued given the law of the case doctrine. Also, the evidence that the IRS ceased using the political advocacy criteria to segregate Tea Party-type applications by June 2013 undercuts the Government’s argument. IRS agents who process an application in the ordinary course are not likely to be accused of viewpoint discrimination. The Government’s August 16, 2016 letter explaining that the IRS has decided to process TPTP’s application does not alter this conclusion. To date, the IRS has not issued a decision on the application.

Finally, the Government has not established that a preliminary injunction is inappropriate because such relief is different in kind from the relief sought in Count II of the Second Amended Class Action Complaint. Plaintiffs state in Count II that “[t]his Court may grant declaratory and injunctive relief against the IRS and the Treasury Department . . . declaring that the Defendants’ discriminatory conduct is unlawful and enjoining them from using tax exemption applicants’ political viewpoints to target them and subject them to delay . . . .” The injunctive relief sought in the Motion for Preliminary Injunction is not materially different. TPTP asks the Court for an ordering compelling the IRS to process TPTP’s application in the ordinary course. Such an order would require the IRS to end the three-year delay in processing.

For all these reasons, the Court concludes that Plaintiffs have established TPTP’s likelihood of success on the merits on Count II of the Second Amended Class Action Complaint.

3. Irreparable Harm and the Public Interest
Next, the Government argues that Plaintiffs cannot prove irreparable harm. The Court disagrees. The loss of First Amendment freedoms causes irreparable injury. Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir. 2014). Additionally, the public interest lies with the protection of constitutional rights. 

Nonetheless, the Government argues that no irreparable harm exists in this case because TPTP has an alternative statutory remedy available. In 2015, Congress amended 26 U.S.C. § 7428 to provide a remedy for § 501(c)(4) applicants whose applications have been pending before the IRS for more than 270 days without a determination. Previously, the remedy was available only to § 501(c)(3) applicants. Now § 501(c)(3) and § 501(c)(4) applicants can file suit in the U.S. Tax Court, the Court of Federal Claims, or the District Court for the District of Columbia for a judicial determination of their tax exemption applications if the IRS has not made a determination in 270 days. 26 U.S.C. § 7428(a)&(b). The Government argues that TPTP will not suffer irreparable harm absent an injunction because it can file a § 7428 suit for judicial determination of its application.

The Government made a substantially similar argument in the Z Street case and it was rejected by the D.C. Circuit Court of Appeals. ... The Court agrees with the Z Street analysis. TPTP is not asking the Court to declare its eligibility for a § 501(c)(4) tax exemption. Instead, TPTP seeks an order prohibiting the IRS from delaying its consideration of its § 501(c)(4) application because of its political viewpoint in opposition to the current presidential administration. It seeks for the IRS to process its application in the ordinary course of business as it would any other § 501(c)(4) applicant. Section 7428 does not provide an adequate alternative remedy for the alleged constitutional wrongdoing.

4. Preliminary Injunctive Relief
The Court concludes for the reasons stated above that Plaintiffs have established that TPTP is entitled to injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. The Court orders the IRS to process TPTP’s § 501(c)(4) application in the ordinary course of business. The IRS shall direct all necessary communications with TPTP through Plaintiffs’ counsel.

B. Motion for Partial Summary Judgment
Turning to the Motion for Partial Summary Judgment, the Government argues that TPTP’s claim fails as a matter of law on the grounds of mootness or lack of standing. It follows from the foregoing analysis of the preliminary injunction issue that the Court does not agree. ...

The Government argues that the case is moot and that TPTP lacks standing because the IRS has ceased the allegedly wrongful conduct which is the basis of the Count II claim. TIGTA concluded that the IRS discontinued using the inappropriate political advocacy criteria and the BOLO listings to screen cases by June 2013. Plaintiffs do not offer evidence at this point to refute the TIGTA conclusion. The cessation of wrongful conduct by a government entity can moot a case if the cessation appears genuine. Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012). However, in True the Vote, Inc. v. Internal Revenue Serv., the D.C. Circuit Court of Appeals was not convinced that statements made by the IRS regarding the suspension of the use of the BOLO listings established that the case was moot. The court explained: “A violation of right that is ‘suspended until further notice’ has not become the subject of voluntary cessation, with no reasonable expectation of resumption, so as to moot litigation against the violation of rights.” This Court agrees. While the cessation of the use of the political advocacy criteria to screen applications did not remedy the alleged ongoing discrimination against TPTP, a preliminary injunction ordering the IRS to process TPTP’s § 501(c)(4) application in the ordinary course will. The Court concludes, therefore, that TPTP has a concrete interest in the outcome of the case, and Count II is not moot. The Court will deny summary judgment to the Government on Count II.

IV. CONCLUSION
For the foregoing reasons, the Government’s Motion to Strike, or in the Alternative Response to, Plaintiff’s Notice of Intention to Supplement Motion for Preliminary Injunction is GRANTED to the extent that it seeks to respond to Plaintiff’s Notice of Intention to Supplement Motion for Preliminary Injunction; the Government’s Motion for Partial Summary Judgment is DENIED; and the Texas Patriots Tea Party’s Motion for Preliminary Injunction is GRANTED.

The Court orders the IRS to process TPTP’s § 501(c)(4) application in the ordinary course of business, directing all necessary communications and requests for additional information to TPTP’s legal counsel. The risk of harm to the IRS if this injunction is overturned is minimal so the Court will require Plaintiffs to submit only a nominal security deposit of $1.00.

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November 10, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

Wednesday, November 9, 2016

Polsky Presents The Up-C Revolution Today At Pennsylvania

Polsky (2015)Gregg D. Polsky (Georgia) presents The Up-C Revolution (with Adam H. Rosenzweig (Washington University)) at Pennsylvania today as part of its Tax Policy Workshop Series hosted by Chris Sanchirico and Reed Shuldiner:

Over the past few years, a revolutionary new tax structure, known as the Up-C, has become increasingly popular, particularly in instances where an LLC is being taken public. In such an Up-C IPO, a newly formed C corporation is placed on top of the existing LLC, which continues to operate the business. Shares of the C corporation are sold to new investors, and the proceeds are used by the C corporation to buy an interest in the LLC. Meanwhile, the legacy owners of the LLC (typically, founders and private investment funds) retain their interests in the LLC, while receiving exchange rights that allow them to swap their LLC interests for equivalent-value shares of the C corporation. In addition, the legacy owners often receive the benefit of tax receivables agreements (TRAs), which provide that the owners will receive a specified percentage (usually 85 percent) of the tax benefits to the C corporation resulting from future exchanges. In combination, these features seem to provide a near-nirvana of tax efficiency. It is therefore unsurprising that the popularity of Up-Cs is growing at an exponential rate.

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

Morse & Allen:  Innovation And Taxation At Start-Up Firms

Susan C. Morse (Texas) & Eric J. Allen (USC), Innovation and Taxation at Start-Up Firms, 69 Tax L. Rev. ___ (2016):

This Article considers capital-constrained start-up firms and conventional income tax breaks meant to encourage innovation. Some argue that these tax breaks provide benefits to encourage innovation that are more certain and earlier in time compared to other possible government policies, such as patent protection. But start-up firms generally cannot use income tax breaks currently, because such firms are not profitable for years after their founding. Instead, investment in income tax planning reduces the funds available to a capital-constrained start-up firm for business investment. This reduces the time a firm has to reach its next stage of success, such as securing external financing.

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

Tax Rate Of S&P 100 Companies

WalletHub, Corporate Tax Rate Report:

With Election Day just days away and tax reform being a major issue this presidential election cycle, the personal-finance website WalletHub today released its latest Corporate Tax Rate Report. This report provides an in-depth analysis of the 2015 rates at which S&P 100 companies — collectively worth more than $12.4 trillion as of Sept. 30 — are taxed at the state, federal and international levels.

WalletHub

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November 9, 2016 in Tax | Permalink | Comments (1)

Analysis Of Section 385 Debt-Equity Regulations

Debt v EquityDavid S. Miller (Proskauer, New York) & Janicelynn Asamoto Park (Proskauer, New York), IRS Issues Final and Temporary Debt-Equity Regulations Under Section 385:

On October 13, 2016, the Treasury Department and the Internal Revenue Service issued final and temporary regulations under section 385 of the Internal Revenue Code. The final and temporary regulations recharacterize certain debt instruments as equity for all federal income tax purposes. This paper briefly describes the final and temporary regulations.

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

The IRS Scandal, Day 1280: WSJ—Lois Lerner As Precursor To James Comey

IRS Logo 2Wall Street Journal:  The Antonin Scalia Election, by William McGurn:

When Americans find themselves inside the voting booth on Tuesday, for many the decisive factor will be which candidate—Donald Trump or Hillary Clinton—should fill Antonin Scalia’s empty seat on the Supreme Court.

This is no small thing. Still, whose vote will replace Scalia’s on the high court is only half the Scalia story, and perhaps not the important half. Beyond even his jurisprudence, this was a man whose wisdom was to appreciate that American liberty is rooted in the separation of powers—and that the chief means of accountability is the ballot box and not the criminal courts.

The left abandoned this principle long ago. ... Mr. Comey’s real outrage was his acquiescence to the handcuffs the Justice Department put on FBI investigators throughout the Clinton email investigation—especially Justice’s refusal to go to a grand jury, without which investigators have no good way to compel evidence and testimony. The principled stand for an FBI director would have been to inform the attorney general,Loretta Lynch, that unless she gave his agents the standard tools of an FBI investigation, he would resign and tell the American people why.

Instead, Mr. Comey proceeded with the constraints and then showboated with a July press conference absolving Mrs. Clinton of any prosecutable wrongdoing. Never mind that an indictment was not his decision to make.

No doubt Ms. Lynch would not have indicted Mrs. Clinton. But had Mr. Comey kept his mouth shut, she, President Obama and Mrs. Clinton would be answering for the decision—not to mention for the highly unethical meeting between the attorney general and Mrs. Clinton’s husband that would have remained secret but for an intrepid reporter. Now all Mr. Comey has to show for his concern for his personal reputation is to have added the FBI to the list of government institutions the public no longer trusts.

And let’s remember how Republicans blinked on Lois Lerner. When Congress held her in contempt for refusing to testify about IRS targeting of conservative groups, the House had three choices: pursue her civilly (which would take years), jail her until she testified, or refer the matter to the local U.S. attorney. Then-Speaker John Boehner opted for the last, probably realizing the Obama Justice Department would never prosecute.

Throughout it all, Congress was lectured about not doing anything to jeopardize a criminal investigation. But in the American understanding, government is accountable first and foremost to We the People operating through our elected representatives. As a co-equal branch of government, Congress is free to use its own powers regardless of what some executive agency might be doing.

Certainly jailing Ms. Lerner would not have been without its political risks. Then again, the Founders meant for such decisions to require hard political calculations.

And the results of opting for an indictment House Republicans knew would not come? Ms. Lerner has mostly gotten off scot-free. The American people still do not know the whole story. And on Friday, a ruling from a federal judge in Ohio reminded us the IRS is still targeting conservative organizations for illegal scrutiny.

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November 9, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (6)

Tuesday, November 8, 2016

Rosenthal:  Protecting Trump's $916 Million Of NOLs

Trump (2016-3)Steve Rosenthal (Tax Policy Center), Protecting Trump's $916 Million of NOLs, 153 Tax Notes 829 (Nov. 7, 2016):

This article describes how Republican presidential nominee Donald Trump generated $916 million of net operating losses, and how he preserved them for later use.

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November 8, 2016 in Political News, Scholarship, Tax | Permalink | Comments (0)

University Of Victoria Seeks To Hire A Tax Prof

UVicThe University of Victoria Faculty of Law invites applications for two positions:

Appointment(s) will be at the rank of tenure-track Assistant Professor or Associate Professor, and the expected start date would normally be July 1, 2017.

Taxation law and policy is the subject area priority for one position. For the second position, we are interested in hearing from all exceptional candidates regardless of subject matter expertise. Although there are no subject limits for the second position, applications from candidates with the capacities to teach and research in the areas of Immigration and Refugee Law, Family Law, Civil Procedure and Dispute Resolution are especially welcome. ...

 

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November 8, 2016 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (1)

Johnson:  Trump Bought The Law In Wilkie Farr's Tax Opinion

WTCalvin H. Johnson (Texas), Bought Law:

In 1991, Donald Trump bought a tax opinion from Wilkie Farr, a New York law firm, that allowed him to avoid tax on roughly a billion dollars of income. The legal theory behind the opinion is that there was no reduction of deductions if the banks traded their Trump-depleted debt for a partnership interest. The theory has neither the literal wording of the statute nor any court case on its said. Nonetheless the theory called Trump to keep a billion dollars of fake tax losses to shelter a billion dollars' of luxury consumption from tax when nothing was lost as a matter of economics.

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November 8, 2016 in Political News, Scholarship, Tax | Permalink | Comments (1)

Professor Althouse, Dean Amar & President Schill On Oregon Tax Prof Nancy Shurtz's Wearing Blackface To Halloween Party

Oregon 2

Following up on my previous posts (links below):

Ann Althouse (Wisconsin), About That Oregon Law Professor Who Wore Blackface as Part Of a Halloween Costume and Provoked Demands That She Resign:

I find it hard to believe that people are willing to be so vengeful over a single instance of bad judgment. Whatever happened to mercy and forgiveness? And what about our shared interest in living in a culture where people aren't fearful that their lives could be ruined if they said one thing wrong — even when they were trying to say something quite bland (like why can't we all get along)?

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November 8, 2016 in Legal Education, Tax | Permalink | Comments (2)

Pratt:  The Bern-ing Fairness Question On Soda Taxes

Pratt (2016)TaxProf Blog op-ed:  The Bern-ing Fairness Question on Soda Taxes, by Katherine Pratt (Loyola-L.A.):

Sugar-sweetened soda tax proposals are on the ballot today in Northern California and Boulder Colorado. Soda tax proponents stress the surprisingly harmful health effects of a sugary soda habit, in addition to Big Soda’s targeting and commercial exploitation of low-income communities, especially communities of color. So guess who Big Soda has been using as its new unofficial spokesperson? Bernie Sanders. During the primary season, Bernie opposed Philadelphia’s proposed soda tax on the grounds that it would be “regressive,” meaning that, as a percentage of income, the tax would be higher for low-income soda drinkers than for high-income soda drinkers. Big Soda has used Bernie’s earlier regressivity objection to soda taxes in its newest campaign to defeat the Bay area and Boulder soda tax measures.

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November 8, 2016 in Tax | Permalink | Comments (0)

The IRS Scandal, Day 1279: WSJ — Another Federal Court Says The IRS Continues To Harass Conservative Groups

IRS Logo 2Wall Street Journal editorial, IRS vs. Tea-Party Patriots: New Evidence That Harassing Conservatives Has Continued:

The Obama Administration is nearing the end but the legal challenges to the IRS targeting of conservative groups are far from over. On Friday federal Judge Michael Barrett granted a preliminary injunction against the IRS on strong evidence of viewpoint discrimination by the agency.

Judge Barrett ruled (NorCal Tea Party Patriots v. IRS) that the Texas Patriots Tea Party (TPTP) “has made a strong showing of a likelihood of success on the merits.” He added that “TPTP has put forward evidence demonstrating that the IRS targeted TPTP’s application for special scrutiny and delayed processing because it met the political advocacy criteria found to be inappropriate in the 2013 TIGTA Report.”

This case is especially notable because the targeting of TPTP occurred after the time that the Treasury Inspector General for Tax Administration said the IRS had been using the inappropriate targeting criteria. The group, which is based near Fort Worth, applied for tax-exempt status in summer 2012 and was flagged in September 2012 for extra scrutiny as a tea-party group. According to the Treasury report, the IRS’s use of targeting criteria stopped in May that year. ...

Judge Barrett’s injunction requires the IRS to process the group’s application as it would any other, but the tax agency needs a top to bottom house-cleaning.

New York Post, From the Right: IRS Targeting Never Stopped:

Remember the IRS scandal over the agency targeting conservative nonprofits? Well, it’s still happening, writes Rick Moran at PJ Media: “A federal judge in Ohio has had it with the IRS foot-dragging on applications from conservative organizations for exempt status and has ordered the agency to quit stalling.” The order, contained in a filing unsealed Friday, makes clear that “three years after being assured by the IRS that they had stopped singling out conservative organizations for special scrutiny, the targeting continues,” Moran says. It also shows the IRS’ utter contempt for the investigation, according to Moran. The targeting will continue, Moran says, “until a judge holds a couple of IRS managers in contempt and lets them cool their heels in jail for a few days.”

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November 8, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Monday, November 7, 2016

Kuziemko Presents Redistribution In An Age Of Rising Inequality Today At NYU

KuziemkoIlyana Kuziemko (Princeton) presents Support for Redistribution in an Age of Rising Inequality: New Stylized Facts and Some Tentative Explanations (with Vivekinan Ashok (Yale) & Ebonya Washington (Yale)) today at the NYU High-End Inequality Colloquium Series (more here) hosted by Robert Frank (Cornell) and Dan Shaviro (NYU):

Despite the large increases in economic inequality since 1970, American survey respondents exhibit no increase in support for redistribution, in contrast to the predictions from standard theories of redistributive preferences. We replicate these results but further demonstrate substantial heterogeneity by demographic groups. In particular, the two groups who have most moved against income redistribution are the elderly and African-Americans. We find little evidence that these subgroup trends are explained by relative economic gains or growing cultural conservatism, two common explanations. We further show that the elderly trend is uniquely American, at least relative to other developed countries with comparable survey data. While we are unable to provide definitive evidence on the cause of these two groups' declining redistributive support, we offer additional correlations which may offer fruitful directions for future research on the topic.

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November 7, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Hurt Presents Using NOL Poison Pills To Ward Off Activist Investors Today At UC-Irvine

Hurt (2016)Christine Hurt (BYU) presents The Hostile Poison Pill, 50 U.C. Davis L. Rev. ___ (2016), at UC-Irvine today as part of its Business Colloquium Series hosted by Katherine Porter and Funmi Arewa:

Whether one ascribes to the agency theory of shareholder primacy or the contractarian theory of director primacy, boards of directors have great discretion in determining whether, when, and how to sell the corporation. Defensive tactics, like poison pills, can be tools in wielding that discretion in the service of creating shareholder value. However, a poison pill either to oppress a minority shareholder, as in eBay v. Newmark, or to minimize the impact of activist shareholders, as in Versata Enterprises, Inc. v. Selectica, Inc., seems to exceed the “maximum dosage” of the pill. The NOL poison pill, while facially plausible as a tool to protect tax assets from impairment caused by a Section 382 “ownership change,” may be a stepping stone to a low-trigger anti-shareholder pill. Instead of warding off uninvited potential acquirers, the pill could ward off shareholder voice. Though the original poison pills were blessed by the Delaware courts to ward off hostile bidders, now boards can use a hostile poison pill to ward off noisy shareholders.

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

Goldin Presents Rethinking The Taxation Of Single Parents Today At Loyola-L.A.

GoldinJacob Goldin (Stanford) presents Beyond Head of Household: Rethinking the Taxation of Single Parents (with Zachary Liscow (Yale)) at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Ellen Aprill and Katherine Pratt:

Under current law, unmarried taxpayers with children can take advantage of the head of household filing status (HHFS) to reduce their federal income taxes. We argue that the design of the filing status is largely obsolete, geared toward alleviating a “marriage penalty” in the tax code that is much less important than when the filing status was first established. At the same time, the growth in the fraction of Americans raising children outside of traditional two-parent households has dramatically raised the cost of the filing status to the fisc.

In this article, we highlight two features of the design of HHFS that undermine its goal of providing support to single parent households.

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November 7, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (2)

Dilbert Creator Reiterates His Endorsement Of Trump Due To Clinton's Proposed 65% Estate Tax Rate

Dilbert TrumpFollowing up on my previous post:  Dilbert.com, I Don’t Want a Government Job:

My current tax rate is about half of my income when you add up all of the various taxes. I don’t have many deductions. Clinton proposes an estate tax that would take about half of what is left. In effect, Clinton wants my tax rate to be around 75% for every dollar I earn today.

That level of taxation would make me feel like a government employee. The vast majority of my time and energy would go toward making money that politicians would decide how to spend. That doesn’t feel like a rewarding life. If Clinton wins, I would think hard about retiring early and becoming a user of resources instead of a creator of resources. Because I don’t want a government job.

A Trump presidency, on the the other hand, makes me want to do something useful for the country that is good for me too. That’s a big part of why I have been blogging about Trump’s persuasion skills. I want voters to have a clear view of their options. If voters choose Clinton, I can live with that for six months until Kaine takes over. But I wouldn’t feel good about myself if I didn’t at least try to help people see the Trump option for what it is – an opportunity to “drain the swamp” as he says. ...

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November 7, 2016 in Political News, Tax | Permalink | Comments (1)

Pratt:  Two Tax Issues Disqualify Trump For The Presidency

Pratt (2016)TaxProf Blog op-ed:  Trump Tax Concerns Persist, by Katherine Pratt (Loyola-L.A.):

Just 24 hours before the presidential election, concerns about Donald Trump’s payment of his tax obligations persist.  Recent press coverage has focused on an issue that (at least so far, based on very limited information) probably does not disqualify him to be our president, and has not focused enough on two more fundamental tax issues that disqualify him to be our president.

In the past few days, press coverage has emphasized a technical business tax question:  what specific tax strategies did Trump use to generate and preserve $916 million of net operating losses (NOLs), despite massive debt discharge, and were those strategies legally questionable? A front page November 1 New York Times article on this topic asserts that the “stock for debt swap” part of Trump’s overall  tax strategy was a new tax “dodge” dreamed up by tax lawyers to avoid debt discharge income (COD) on the cancellation of debt. This characterization of such swaps as a new tax scam is inaccurate. My academic articles on corporate COD explain the long history and theory of the exception and its gradual repeal [Shifting Biases: Troubled Company Debt Restructurings after the 1993 Tax Act, 68 Am. Bankr. L.J. 23 (1994); Corporate Cancellation of Indebtedness Income and the Debt-Equity Distinction, 24 Va. Tax Rev. 187 (2004)]. Suffice it to say that “stock for debt swaps” in bankruptcy cases were relatively common in the 1980s and early 1990s. Unless there is more to be revealed, Trump’s use of the stock for debt exception to COD does not disqualify him to be president.

But Trump’s conduct regarding two other tax issues does disqualify him to be president.

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November 7, 2016 in Political News, Scholarship, Tax | Permalink | Comments (4)

Columbia Journal Of Tax Law Issues Call For One Tax Paper For Inclusion In Forthcoming Issue

Columbia Journal of Tax Law LogoThe Columbia Journal of Tax Law has issued a call for one paper for inclusion in its forthcoming Volume 8, Issue No. 2:

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

The IRS Scandal, Day 1278:  Trump's Refusal To Release His Tax Returns And The IRS Scandal

IRS Logo 2American Thinker: In Defense of Trump's Nondisclosure of His Tax Returns, by Kenneth H. Ryesky (E&Y):

There are ... considerations against disclosure, over and above the political calculus behind Trump's decision to release or not release his tax returns (and, for that matter, the tax return disclosure/nondisclosure decision of any politician for any political office). ...

Ex-IRS commissioner Fred Goldberg asserts that Trump's release of certain limited portions of his tax returns "would have no impact on any pending or future IRS audit of Trump. Zero. None." But there is no denying that the IRS has increasingly of late been sicced by politicians upon their political enemies, and it is not difficult to imagine a government official who is not directly involved in a Trump return audit (including a president or congresscritter), having seen a released copy, pressuring or otherwise inducing a cognizant IRS bureaucrat to take a closer look at one or more particular items on Trump's return (or on the return of a connected person or entity). ...

Notwithstanding (or perhaps because of) my professional standing in the taxation community, my own curiosity about Donald Trump's tax returns is probably greater than that of the average American voter. But given the demonstrated political weaponization of the IRS, perhaps Trump's refusal to play the disclosure game may better serve America's interests in the long run.

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November 7, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

TaxProf Blog Weekend Roundup

Sunday, November 6, 2016

Chodorow:  Trump Should Pay The Political Price For Failing To Release His Tax Returns

Trump (2016-3)Slate:  Keep Harping Over Trump’s Tax Returns, by Adam Chodorow (Arizona State):

His refusal to release them no longer feels like a first-order concern. But it’s one more broken norm that Americans will rue.

It’s fairly evident by now why Trump wouldn’t want his returns to be public—as I’ve written several times throughout the election cycle. There’s no reason to think he’ll reverse course and finally release them in the next week. But this goes far beyond Trump. Every major candidate for the past 26 years has released his or her tax returns, and we risk undermining this important tradition if we allow Trump’s refusal to get lost amid his other scandals and outrageous statements or concerns about Clinton’s emails. Just as candidates now release medical records to assure voters that they are fit for office, tax records are critical because they reveal a candidate’s potential conflicts of interest and commitment to honesty and integrity.

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November 6, 2016 in Political News, Tax | Permalink | Comments (6)

University Of Rochester B-School Professor Pays $100 Million FBAR Penalty Over Swiss Accounts

Horsky 2Department of Justice Press Release, Emeritus Professor Pleads Guilty to Conspiring to Defraud the United States and to Submitting False Expatriation Statement; Hid Account Containing $200 Million Also Paying $100 Million Civil FBAR Penalty:

A Rochester, New York emeritus professor of business administration pleaded guilty today to conspiring with others to defraud the United States and to submitting a false expatriation statement to the Internal Revenue Service (IRS), announced Principal Deputy Assistant Attorney General Caroline D. Ciraolo, head of the Justice Department’s Tax Division, and U.S. Attorney Dana J. Boente of the Eastern District of Virginia, after the plea was accepted by U.S. District Judge T.S. Ellis III.

According to documents filed with the court and statements made during the plea hearing, Dan Horsky, 71, is a citizen of the United States, the United Kingdom and Israel and was employed for more than 30 years as a professor of business administration at a university located in New York [University of Rochester].

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November 6, 2016 in Tax | Permalink | Comments (5)

The Top 5 Tax Paper Downloads

SSRN LogoThere is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #4 and a re-shuffling of the order within the Top 5.  The #1 paper is now #23 in all-time downloads among 12,319 tax papers:

  1. [3,838 Downloads]  Families Facing Tax Increases Under Trump's Latest Tax Plan, by Lily L. Batchelder (NYU)
  2. [237 Downloads]  Aggressive Tax Planning & the Ethical Tax Lawyer, by Heather M. Field (UC-Hastings)
  3. [236 Downloads]  The Up-C Revolution, by Gregg D. Polsky (Georgia) & Adam H. Rosenzweig (Washington University)
  4. [229 Downloads]  Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, by Elizabeth Ruth Carter (LSU)
  5. [226 Downloads]  Taxation and Human Rights: A Delicate Balance, by Reuven Avi-Yonah (Michigan) & Gianluca Mazzoni (S.J.D. 2017, Michigan)

November 6, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

The IRS Scandal, Day 1277: Second Federal Court Rules IRS Targeted Conservative Groups, Orders IRS To Act On Tea Party Group's Tax-Exempt Application Pending Since 2012

IRS Logo 2Washington Times, Judge Orders IRS to Stop Tea Party Targeting, Approve Four-Year-Old Application:

The IRS is still targeting tea party groups for illegal scrutiny by refusing to process applications that have been pending for years, a federal court said in a ruling made public Friday, ordering the tax agency to quit stalling.

U.S. District Judge Michael R. Barrett said the IRS can still either approve or deny the Texas Patriots Tea Party’s application for nonprofit status, but the agency can no longer sit on its hands. And he said the IRS must give the application an honest evaluation without prejudice stemming from the years long targeting.

In a series of stark findings, Judge Barrett ruled that the IRS did in fact single tea party groups out for special scrutiny because of their political viewpoints in opposition to President Obama — undercutting congressional Democrats who said liberal groups faced the same level of targeting.

“The evidence strongly suggests that the IRS initiated the delay because TPTP’s application was perceived at the screening stage to be a Tea Party case,” Judge Barrett, whose courtroom is in Ohio, said in an opinion that was filed earlier under seal, and was only made public after parts of the 29-page ruling were redacted.

It’s the latest blow to the tax agency, which is facing a separate order from a judge in Washington, D.C., to process a handful of other cases the agency had delayed.

American Thinker, Judge Orders IRS to Stop Targeting Conservative Groups:

A judge in Ohio is ordering the IRS to stop targeting conservative groups applying for tax exempt status and to make an immediate determination on an application by a Tea Party group in Texas.

The decision, made public on Friday, leaves no doubt that despite their claims to the contrary, the IRS is still playing politics in determining the tax exempt status of conservative groups - some of whom have been waiting for years to be approved. ...

The arrogance of this out of control agency is breathtaking. Judge after judge in ruling after ruling has ordered the IRS to halt their illegal targeting of conservative groups, but the IRS has, in effect, thumbed its nose at the courts and continues to play politics with tax exempt applications by conservatives.

The real world impact is that most of these groups who've had their applications slow walked through the system wither and die because donors can't take the tax deduction from monies they contribute to these groups. That, of course, is the heart of the IRS plan, which has worked for 5 years to stifle the free speech of conservatives.

PJ Media, Federal Judge: IRS Still Illegally Targeting Conservatives:

A federal judge in Ohio has had it with the IRS foot-dragging on applications from conservative organizations for exempt status and has ordered the agency to quit stalling.

The order was contained in a sealed filing that became public on Friday. What's clear in the judge's order is that three years after being assured by the IRS that they had stopped singling out conservative organizations for special scrutiny, the targeting continues.

Of course, it isn't just the IRS slow-walking applications through the system that's the problem. The targeting also included outrageous requests for information like donors names and addresses, reading lists, and other private information the agency had no business trying to acquire.

Two federal judges have now ruled against the IRS, rejecting their arguments that they're not targeting conservative organizations.

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November 6, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Saturday, November 5, 2016

This Week's Ten Most Popular TaxProf Blog Posts