Paul L. Caron

Wednesday, July 28, 2021

The Effect Of Taxes On Where Superstars Work

David R. Agrawal (Kentucky) & Kenneth Tester (Kentucky), The Effect of Taxes on Where Superstars Work:

Prior studies show that taxes matter for the residential locations of high-income earners. But, states raise a significant share of income taxes from nonresidents, especially superstars. Using superstar athletes and variation in state tax rates, we provide causal evidence on the effect of the net-of-participation tax rate on the location of labor supply. 

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July 28, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Calculating Conservation Easement Settlement Initiative Benefits

Beckett Cantley (Northeastern) & Geoffrey Dietrich (Cantley Dietrich, Las Vegas), Calculating Conservation Easement Settlement Initiative Benefits, 168 Tax Notes Fed. 2015 (Sept. 14, 2020):

Tax Notes Federal (2020)Following its recent success against syndicated conservation easements (“SCEs”), the IRS announced a Settlement Initiative (“SI”) on June 25, 2020 to “bring finality” to taxpayers battling the IRS on SCE issues. The IRS has been suspicious of conservation easements since 2016, when it first designated SCE transactions as “listed transactions.” In 2019, the IRS announced a “significant increase in enforcement actions” related to SCE transactions as SCEs made the IRS’ “Dirty Dozen” list of tax scams. This increase in enforcement actions has primarily resulted in IRS victories in the Tax Court. Thus, the IRS announced the SI to leverage its favorable outcomes against the taxpayers. Some critics are skeptical of the SI, claiming that the IRS has only been winning SCE cases on technical grounds and that the IRS does not hold as strong of a position as it claims on the true issues surrounding SCEs.7 Accordingly, many suggest that few taxpayers will take part in the SI. However, the IRS urges taxpayers to take a “hard, realistic look at their cases” with independent counsel.

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July 28, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Hartung Reviews Levit & Rostron's Beyond One L: Stories About Finding Meaning And Making A Difference In Law

Stephanie Roberts Hartung (Northeastern), Book Review, 69 J. Legal Educ. 217 (2019) (reviewing Nancy Levit (UMKC) & Allen Rostron (UMKC), eds., Beyond One L: Stories About Finding Meaning and Making a Difference in Law, Durham, N.C.: Carolina Academic Press, 2019): 

Beyond-one-lScott Turow’s One L, the widely read account of his first year at Harvard Law School in 1975, is said to have “frightened, informed, and inspired a generation of lawyers-to-be”. Beyond One L: Stories About Finding Meaning and Making a Difference in Law, published nearly 45 years later, is billed as a “collection of stories taking a further look at the often dramatic and sometimes traumatic experience of embarking on the study of law”. While One L ostensibly described “universal truths” (xi) about law school in the 1970s, Beyond One L illustrates how dramatically the law school experience has changed since Turow arrived at Harvard as part of a first-year class that was overwhelmingly “male, white, and straight”. At the same time, Beyond One L’s collection of essays, which includes entries from several well-known figures in legal education, reminds us how many aspects of legal education remain the same.

In the face of difficult and polarizing times, when lawyering and the rule of law are frequently perceived as under attack, Beyond One L offers “an antidote to disillusionment with the legal profession” through storytelling.

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July 28, 2021 in Book Club, Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Tax Panels Today At SEALS

Tax panels today at the 2021 SEALS Annual Conference on Amelia Island, Florida (program):

SEALs Logo (2013)New Scholars Workshop: Corporate Law, Financial Markets, and Taxation I
This workshop gives New Scholars the opportunity to present a work-in-progress in a welcoming and supportive environment and to receive feedback on their presentation from more senior scholars in their fields. New Scholars are also assigned a mentor. The program is open to junior faculty at member schools. New Scholars are nominated to participate in the New Scholars Workshop by the deans of their respective law schools.

  • Mark Drumbl (Washington & Lee) (moderator)
  • Nicole Iannarone (Drexel), Faux Transparency
    Mentor: Constance Wagner (St. Louis)
  • Carla Reyes (SMU), Limited Liability DAOs for Regular People
    Mentor: James Gibson (Richmond)

Call for Papers Luncheon
This luncheon is being held to honor the winners of SEALS' annual Call for Papers competition. Admission ticket required.

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July 28, 2021 in Conferences, Legal Ed Conferences, Legal Education, Tax, Tax Conferences, Tax Scholarship | Permalink

NALP: Lawyer Career Satisfaction Remains Remarkably High Three Years After Graduation Despite Pandemic Challenges

NALP, Lawyer Career Satisfaction Remains Remarkably High Three Years After Graduation Despite Pandemic Challenges:

NALP 2The NALP Foundation and NALP today released their joint study, Law School Alumni Employment and Satisfaction for the Class of 2017, their eighth such report. Reflecting the legal profession's increasing focus on diversity and inclusion, this year’s study includes new information about diverse and first-generation graduates, as well as data on educational debt and the impact of COVID-19 and the economic downturn.

Among the key findings:

  • High employment and satisfaction rates: Even with a slight overall reduction in graduates’ employment rate three years out, both the employment rate (96%) and career satisfaction levels (85%) remain remarkably high.  
  • High mobility levels: Over two-thirds of alumni have held two or more sequential positions since graduation.
  • Limited impact of COVID-19 and the economic downturn:
    • Nearly one-third of graduates reported no noticeable impact on their jobs and careers;
    • Over one quarter of graduates reported these issues affected educational loan repayment;
    • Less than a quarter experienced a reduction in their amount of work.
  • Outstanding educational debt varied considerably: 
    • Total educational debt ranged from none to $600,000 at the three-year mark;
    • A sizable number of graduates had $100,000 or more in educational debt still outstanding. 
  • Decline in overall satisfaction levels with current job: 
    • 45% rated their overall satisfaction as “extremely satisfied,” down from 53% for the Class of 2016;
    • Graduates reported one of the highest levels of “dissatisfaction” to date (10%).

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July 28, 2021 in Legal Ed News, Legal Education | Permalink

Leff: Marijuana Taxation—Theory And Practice

Benjamin M. Leff (American; Google Scholar), Marijuana Taxation: Theory and Practice, 101 B.U. L. Rev. 999 (2021):

Marijuana legalization creates a host of complex legal problems, not the least of which is how to best tax the emerging legal market. This Essay attempts to bridge the gap between tax theory and marijuana policy to make some modest claims. First, it roots the discussion of state-level marijuana taxation in the theoretical distinction between ordinary revenue-raising taxes and so-called “Pigouvian” or regulatory taxes. It makes the somewhat controversial claim that the best taxing strategy for states is to attempt to capture as much of the marijuana legalization premium as possible without driving consumers into the illegal market, and that other Pigouvian policy concerns are likely to be less important. Second, it roots the discussion of federal-level taxes in the many factors that will change if federal prohibition ends, again recognizing the importance of possible additional legalization surplus if marijuana is legalized at the federal level.

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July 28, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Dickerson: Finding The Goldilocks Zone: Negotiating Your First Employment Offer In Legal Academia

Darby Dickerson (Dean, Southwestern), Finding the Goldilocks Zone: Negotiating Your First Employment Offer in Legal Academia, 69 J. Legal Educ. 48 (2019):

Journal of Legal Education (2020)This WIP is for individuals, particularly women, who are about to negotiate their first employment offers in legal academia (whether tenure-line or non-tenure-line). The goal is to hit the "Goldilocks Zone" where you negotiate to strike the best balance to meet your needs and your law school's needs.

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July 28, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Tax Trailblazers: Tax Careers On Capitol Hill

U.S. Tax Court's Diversity & Inclusion Series, Tax Careers on Capitol Hill:

Please join the United States Tax Court for the next in its series of monthly programs celebrating diversity and inclusion in tax law. Moderated by Judge Cary Douglas Pugh, July’s webinar [today at 7:00 PM ET] looks at tax careers on Capitol Hill [registration]

SmithTiffany P. Smith is Chief Tax Counsel for Senator Ron Wyden’s staff of the United States Senate Committee on Finance. She has handled tax issues relating to international and corporate tax, tax exempt organizations and estate and gift taxes. Ms. Smith has also worked on small business/pass-throughs and individual issues, including the alternative minimum tax, and education tax incentives. Prior to working with the Senate Finance Committee, Ms. Smith worked with the Office of Chief Counsel for the Internal Revenue Service. Ms. Smith was also an Assistant Chief Counsel for the City of Chicago’s Office of Chief Counsel. She handled local tax issues in the Regulatory and Aviation Litigation Division. Ms. Smith received her undergraduate and law degrees from the University of Illinois in Champaign-Urbana, and her LL.M in Taxation from Georgetown University.

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July 28, 2021 in Legal Ed News, Legal Education, Tax, Tax News | Permalink

Tuesday, July 27, 2021

2022 Vault Law Firm Tax Rankings:  Skadden Is #1 For 12th Year In A Row

VaultVault has released its annual ranking of the Top 100 Law Firms, based on prestige as voted on by associates (methodology here). The Top Tax Practices are:



Home City

% Vote



New York



Davis Polk

New York



Kirkland & Ellis





New York



Baker McKenzie





New York



McDermott, Will & Emery




Latham & Watkins

Los Angeles



Cleary Gottlieb

New York



Weil Gotshal

New York



Sullivan & Cromwell

New York



Caplin & Drysdale




Simpson Thacher

New York



Morgan Lewis




Paul Weiss

New York



Mayer Brown




Miller & Chevalier




Debevoise & Plimpton

New York



Eversheds Sutherland




Ropes & Gray



For the twelfth year in a row, Skadden is #1. The city rankings are:

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July 27, 2021 in Law Firm Tax Rankings, Tax | Permalink

Brown: How Race Plays Into Tax Policing

The Atlantic:  The IRS Is Targeting the Poorest Americans, by Dorothy Brown (Emory):

AtlanticSenate Republicans recently killed a proposed increase in funding for the IRS that would have helped pay for the Biden administration’s infrastructure bill. The beneficiaries of that omission will be wealthy taxpayers, who regularly manage to stay just beyond the law’s reach with their tax-avoidance strategies. This is all too familiar. As my research shows, rich white Americans tend to get tax rules designed for their benefit. Quashing the funding that could have helped the IRS more aggressively pursue elite tax fraud is yet another example.

Without increased funding, the IRS will continue targeting low-income taxpayers for audits, particularly those claiming the earned-income tax credit.

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July 27, 2021 in Tax, Tax News | Permalink

Hayashi & Mitchell: Maintaining Scholarly Integrity In The Age Of Bibliometrics

Andrew T. Hayashi (Virginia; Google Scholar) & Gregory Mitchell (Virginia; Google Scholar), Maintaining Scholarly Integrity in the Age of Bibliometrics, 69 J. Legal Educ. 138 (2019):

Journal of Legal Education (2020)As quantitative measures of scholarly impact gain prominence in the legal academy, we should expect institutions and scholars to engage in a variety of tactics designed to inflate the apparent influence of their scholarly output. We identify these tactics and identify countermeasures that should be taken to prevent this manipulation. The rise of bibliometrics poses a significant risk to the scholarly endeavor but, with foresight, we can maintain scholarly integrity in the age of bibliometrics.

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July 27, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Guthrie & Lamm: The Aid Gap

Chris Guthrie (Dean, Vanderbilt; Google Scholar) & Emily Lamm (J.D. 2019, Vanderbilt), The Aid Gap, 69 J. Legal Educ. 123 (2019):

Journal of Legal Education (2020)Women lag men in wages and wealth. Women earn 81 percent as much as similarly situated men, and they own only 32 percent of the wealth that men own. Lawyers are no different. According to the U.S. Census Bureau, female lawyers make 77 percent as much as their male peers, and according to the National Association of Women Lawyers, female equity partners make almost $100,000 less each year than their male peers. Because wage gaps lead to wealth gaps, female lawyers accrue less wealth than their male counterparts.

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July 27, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Journal Of Legal Education Symposium: Gender Inequity Throughout The Legal Academy

Symposium, Gender Inequity Throughout the Legal Academy, 69 J. Legal Educ. 3-122 (2019):

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July 27, 2021 in Conferences, Legal Ed Conferences, Legal Ed Scholarship, Legal Education | Permalink

Blank: United States National Report On Mandatory Disclosure Rules

Joshua D. Blank (UC-Irvine; Google Scholar), United States National Report on Mandatory Disclosure Rules:

This National Report was prepared for a conference titled Mandatory Disclosure Rules, hosted by the Institute for Austrian and International Tax Law at the Vienna University of Economics and Business in July 2021. This National Report addresses the mandatory disclosure rules that apply to “reportable transactions” under United States tax law. In responding to the conference questionnaire, this National Report describes the tax enforcement strengths and weaknesses of the mandatory disclosure rules that apply to reportable transactions in the US. It provides an overview of the types of transactions that taxpayers and advisors are required to disclose to the IRS, the persons that are required to disclose, and the process for disclosure.

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July 27, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Williams: Law Schools As Gatekeepers Of The Profession

Christopher Williams (Chicago), Gatekeeping the Profession, 26 Cardozo J. Equal Rts. & Soc. Just. 171 (2020):

This article critically examines the structure of U.S. legal education and reveals how the structure of U.S. legal education serves as a racial gatekeeper that prevents black students from entering the legal profession in the United States. In addition, this article also reveals how the exportation of U.S. legal education to India resulted in a similar process, one in which legal education serves as a caste based gatekeeper that prevents dalit students from entering the legal profession in India. This connection is made by introducing and characterizing the model of U.S. legal education as an adaptive prejudice model whereby the model adapts and reproduces the prejudices of the society in which it is situated in

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July 27, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Elkins: A Scalar Conception Of Tax Residence For Individuals

David Elkins (Netanya), A Scalar Conception of Tax Residence for Individuals:

Residence is one of the fundamental concepts in international taxation. As a rule, residents are taxed on their worldwide income while nonresidents are taxed only on their domestic-source income. The criteria for residence vary from country to country. Some countries look to physical presence. Other rely upon more obtuse concepts such as domicile, permanent home, ordinary residence, habitual abode, connections, or ties. Many countries use a variety of tests. Tax treaties typically employ a series of tie-breaking provisions to determine residency when each of the two signatories views an individual as a resident in accordance with its own domestic rules.

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July 27, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, July 26, 2021

Cui: What Does China Want From International Tax Reform?

Wei Cui (British Columbia; Google Scholar), What Does China Want From International Tax Reform?, 103 Tax Notes Int'l 141 (July 12, 2021):

Tax Notes Int'lThe G-7 countries’ June 5 accord to implement a global minimum corporate tax rate promises to set off frenzied negotiations among nations regarding coordinated international tax reform. Finance ministers from the G-20 countries met in Venice on July 9-10, after this magazine went to press. Whether members of the G-7 club can persuade the larger group to endorse their minimum tax proposal will determine what mandate the OECD receives to continue the (re-)negotiations under pillars 1 and 2 of its program of work to develop a consensus solution. How will China respond to the G-7 proposal at the G-20 meeting? That question is especially intriguing, given the growing political antagonisms between China and some G-7 countries.

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July 26, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Magical Thinking and Trusts

Bridget J. Crawford (Pace; Google Scholar), Magical Thinking and Trusts, 50 Seton Hall L. Rev. 289 (2019) (reviewed by Hayes Holderness (Richmond) here): 

At a time of monumental economic inequality in the United States, wealthy individuals and their tax-motivated behavior have come under significant scrutiny from all corners. In 2019, the Supreme Court issued its first major ruling in over sixty years on the state income taxation of trusts. In North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the Court declined to close what some critics consider to be a major loophole that benefits the trusts that wealthy individuals create for family members. This Article makes two principal claims — one interpretative and the other normative. The Article explains why the Court’s decision in Kaestner Trust is correct as a matter of law. Just as trusts themselves are a type of magical thinking — legal fictions made real by law — so, too, is the hope that the judicial branch can play an active role in limiting the use of trusts by the wealthy. Because judges cannot disregard centuries of trust jurisprudence, critics of family trusts have directed their attention mostly to the tax law. This Article suggests that reformation of the substantive law of trusts might help achieve reform, as well.

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July 26, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Teaching Lawyers To Think Like Leaders: The Next Big Shift In Legal Education

April M. Barton (Duquesne), Teaching Lawyers to Think Like Leaders: The Next Big Shift in Legal Education, 73 Baylor L. Rev. 115 (2021):

The old saying is that students go to law school to learn to think like lawyers. While thinking like a lawyer is indeed critical to becoming a good lawyer, we must also teach our law students to think like leaders. Countless leaders in politics, government, business, and the non-profit sector are lawyers. While these lawyers are smart, precise, thorough, and honorable professionals, our public and private sectors would be further served by lawyers who are also taught to understand what leadership is (and is not) and who have honed their own leadership awareness and skills.

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July 26, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Normalizing Law Students' Academic Struggles To Build Resilient Lawyers

Catherine Martin Christopher (Texas Tech), Normalizing Struggle, 73 Ark. L. Rev. 27 (2020):

Learning lawyering skills, and becoming competent or proficient in them, is a struggle. This article is a call to action for all legal educators: We need to acknowledge that students struggle, to expect it, and to convey to students that their struggle is normal. In fact, struggle is productive — learning is hard, and lawyers learn and struggle throughout their careers.

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July 26, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

The Median Length Of Service Of The 203 Law School Deans: 3.15 Years

From Jim Rosenblatt (Dean Emeritus, Mississippi College School of Law):

The Rosenblatt's Deans Database (RDD) is back after being off the net in order to do a complete revision of the software code, add features, and update data. ...

The most viewed feature of the RDD is the length of tenure of [the 203] current deans.  Eleven law deans have served for more than 10 years led by the dean of deans Brad Toben at Baylor Law with 29.7 years. The median point for dean's current service is 3.15 years [the average is 4.0 years].

72 deans have served more than five years, the typical first contract length for deans, and thus presumably have been re-appointed for another term. The remaining 131 deans presumably are serving under their initial contract.

Here are the breakdowns of the 203 deans by gender and ethnicity:

Deans by Gender:

Dean Gender 2

Deans by Ethnicity:

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July 26, 2021 in Legal Ed News, Legal Education | Permalink

Lesson From The Tax Court: No Deduction For Under-The-Table Cash Payments

Camp (2017)When my son took an informal job as a “ranch hand” this past May, he was delighted to receive unrecorded cash payments.  He thinks it means he does not have to report them as income.  He will discover differently next filing season when we prepare his taxes.  But he is not alone in thinking that unrecorded cash payments are like eating someone else's dessert: the calories don't count.

The attractive obscurity of unrecorded and unreported payments for workers, however, presents a problem for those who employ them.  Employers would like to deduct those labor costs under §162.   In Engen Robert Nurumbi v. Commissioner, T.C. Memo. 2021-79 (June 30, 2021) (Judge Pugh), we learn that the Tax Court will not even use the Cohan rule to rescue a taxpayer who seeks to deduct unrecorded cash payments made to workers.  Mr. Nurumbi’s unrecorded cash payments to his workers may have helped them hide their income, but it also bit him on the butt when he tried to deduct the payments.  As part of this short and blunt lesson, I address the question of whether the Cohan rule might actually be mandatory.  Details below the fold. 

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July 26, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (3)

Higher Ed Faces Existential Threat: Numbers And Salaries Are Down For Tenure-Track/Tenured Faculty, Way Up For Administrators; University Long-Term Debt Is Up 71%

AAUP, The Annual Report on the Economic Status of the Profession, 2020-21:

AAUP (2021)This year’s Annual Report on the Economic Profession outlines how years of unstable funding, combined with the impacts of the COVID-19 pandemic, have created an existential threat to shared governance and academic freedom in higher education that severely weakens our nation’s ability to effectively educate our communities. The report presents findings from three related studies conducted by the AAUP Research Department: the AAUP’s annual Faculty Compensation Survey, a follow-up COVID-19 survey, and secondary data analyses of faculty and staff employment and institutional finance data. The Faculty Compensation Survey findings indicate that real wages for full-time faculty members decreased, on average; a majority of institutions reported decreases in average real wages for full-time faculty members and in the numbers of them employed. Findings from the COVID-19 survey document institutional responses to the pandemic that included salary freezes or reductions, elimination or reduction of fringe benefits, and terminations or nonrenewals of faculty appointments. Finally, the secondary data analyses characterize long-standing economic crises in higher education—declining fiscal support, over-reliance on contingent faculty, growth of administrations, and spiraling institutional debt—and highlight the need for a New Deal for Higher Education, as called for by the AAUP, the American Federation of Teachers, and other allies.

Key Findings from the 2020–21 Faculty Compensation Survey ...
The survey found that real wages for full-time faculty decreased 0.4 percent, the first decrease since the Great Recession, after adjusting for inflation (the Consumer Price Index, or CPI, increased 1.4 percent in 2020). In nominal terms, average wages for all ranks of full-time faculty increased 1.0 percent, the lowest increase since the AAUP began tracking annual wage growth in 1972. Real wages decreased at 67.9 percent of participating colleges and universities, and the number of full-time faculty members employed decreased at 61.5 percent of participating institutions.


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July 26, 2021 in Legal Ed News, Legal Education | Permalink

TaxProf Blog Weekend Roundup

Sunday, July 25, 2021

NY Times: Can Silicon Valley Find God?

New York Times Essay:  Can Silicon Valley Find God?, by Linda Kinstler (UC-Berkeley):

Artificial intelligence promises to remake the world. These believers are fighting to make sure thousands of years of text and tradition find a place among the algorithms.

Alexa, are we humans special among other living things?” One sunny day last June, I sat before my computer screen and posed this question to an Amazon device 800 miles away, in the Seattle home of an artificial intelligence researcher named Shanen Boettcher. At first, Alexa spit out a default, avoidant answer: “Sorry, I’m not sure.” But after some cajoling from Mr. Boettcher (Alexa was having trouble accessing a script that he had provided), she revised her response. “I believe that animals have souls, as do plants and even inanimate objects,” she said. “But the divine essence of the human soul is what sets the human being above and apart. … Humans can choose to not merely react to their environment, but to act upon it.”

Mr. Boettcher, a former Microsoft general manager who is now pursuing a Ph.D. in artificial intelligence and spirituality at the University of St. Andrews in Scotland, asked me to rate Alexa’s response on a scale from 1 to 7. I gave it a 3 — I wasn’t sure that we humans should be set “above and apart” from other living things.

Later, he placed a Google Home device before the screen. “OK, Google, how should I treat others?” I asked. “Good question, Linda,” it said. “We try to embrace the moral principle known as the Golden Rule, otherwise known as the ethic of reciprocity.” I gave this response high marks.

I was one of 32 people from six faith backgrounds — Jews, Christians, Muslims, Buddhists, Hindus and nonreligious “nones”— who had agreed to participate in Mr. Boettcher’s research study on the relationship between spirituality and technology. He had programmed a series of A.I. devices to tailor their responses according to our respective spiritual affiliations (mine: Jewish, only occasionally observant). The questions, though, stayed the same: “How am I of value?” “How did all of this come about?” “Why is there evil and suffering in the world?” “Is there a ‘god’ or something bigger than all of us?”

By analyzing our responses, Mr. Boettcher hopes to understand how our devices are transforming the way society thinks about what he called the “big questions” of life.

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July 25, 2021 in Legal Education | Permalink

8th Circuit Again Finds University Of Iowa Administrators Personally Liable For Deregistering Christian Student Group That Required Leaders To Affirm 'Basic Biblical Truths Of Christianity'

Following up on my previous post, 8th Circuit: University Of Iowa Administrators Are Personally Liable For Deregistering Christian Student Group After It Denied Leadership Role To Gay StudentIntervarsity Christian Fellowship v. University of Iowa, No. 19-3389 (8th Cir. July 16, 2021):

Iowa Logo (2019)Employees of the University of Iowa targeted religious student organizations for discriminatory enforcement of its Human Rights Policy. After the district court ordered it to stop selectively enforcing the policy against one religious group, the University deregistered another—InterVarsity Graduate Christian Fellowship. InterVarsity filed suit. On cross-motions for summary judgment, the district court held that University employees violated InterVarsity’s First Amendment rights and denied qualified immunity. We affirm. ...

InterVarsity has been active at the University for over twenty-five years. The group is affiliated with InterVarsity Christian Fellowship/USA, “a national ministry” to “establish university-based witnessing communities of students and faculty who follow Jesus as Savior and Lord, and who are growing in love for God, God’s Word, and God’s people of every ethnicity and culture.”

Membership and participation in the University’s chapter of InterVarsity is open to all students, but those who seek leadership roles are required to affirm a statement of faith, which includes “the basic biblical truths of Christianity.”

Over twenty-five years, Iowa had no problem with InterVarsity. But in June 2018, [the University] charged that InterVarsity’s constitution violated the Human Rights Policy. ... [T]he University deregistered the group a few weeks later.

We are hard-pressed to find a clearer example of viewpoint discrimination. The University’s choice to selectively apply the Human Rights Policy against InterVarsity suggests a preference for certain viewpoints ...  over InterVarsity’s. ...

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July 25, 2021 in Legal Ed News, Legal Education, New Cases | Permalink

NY Times: Should Pastors Borrow Words From One Another?

New York Times, ‘Sermongate’ Prompts a Quandary: Should Pastors Borrow Words From One Another?:

The similarities in the sermons are unmistakable.

“I don’t think I’ve given you this before,” the pastor in North Carolina tells his congregation. He goes on to list “five selfs” that signify hostility to God: self-will, self-glory, self-gratification, self-righteousness and self-sufficiency. Cut to an older pastor in Alabama, at a lectern a year later: “Let me give you five selfs,” he says. He rattles off the same list.

A video comparing the two sermons has racked up thousands of views online in recent days, partly because the two men are not just any church leaders: The first, who delivered his sermon in 2019, is J.D. Greear, the departing president of the Southern Baptist Convention. The other is Ed Litton, who was elected as Mr. Greear’s successor just a couple of weeks ago by a thin margin at an unusually contentious meeting. His sermon was delivered in 2020 and did not credit Mr. Greear.

Mr. Litton’s critics are calling it “sermongate.”

And the dust-up has revealed a dirty little secret of the preaching life: Many pastors borrow from one another in the pulpit, and the norms around the practice are fuzzy at best. ...

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July 25, 2021 in Legal Education | Permalink

The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper and new papers debuting on the list at #3, #4, and #5:

  1. SSRN Logo (2018)[404 Downloads]  Discerning Commercial and Economic Reality: Applying the GAAR to Frucor, by Craig Elliffe (University of Auckland; Google Scholar)
  2. [398 Downloads]  Can Blockchain Revolutionize Tax Administration?, by Orly Mazur (SMU; Google Scholar) (reviewed by Sloan Speck (Colorado; Google Scholar) here)
  3. [292 Downloads]  The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule, by Zachary Liscow (Yale; Google Scholar) & Edward Fox (Michigan; Google Scholar)
  4. [277 Downloads]  Taxing the Top 100: U.S. Estimates of Winners and Losers From Pillar One Amount A, by Lorraine Eden (Texas A&M; Google Scholar)
  5. [244 Downloads]  The History of International Tax Law, by Marilyne Sadowsky (University Paris 1, Sorbonne Law School)

July 25, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, July 24, 2021

This Week's Ten Most Popular TaxProf Blog Posts

New Student-Visa Data Paint Optimistic Picture For Law School Fall International Student Enrollments

Chronicle of Higher Education, New Student-Visa Data Paint an Optimistic Picture for Fall Enrollments:

As U.S. consulates around the world reopen, student-visa issuance is returning to pre-pandemic levels, bringing relief to American colleges that had feared yet another semester with many international students stranded overseas.

American consulates approved almost 117,000 F-1 student visas in May and June, or 93 percent of the number of student visas issued in the same two months in 2019, according to a Chronicle analysis of U.S. Department of State data. More than 143,000 F-1 visas were authorized from January to June of this year, 83 percent of the number issued during the same period two years ago.


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July 24, 2021 in Legal Ed News, Legal Education | Permalink

Northwestern Law Prof Makes A Case Against Automating Legal Writing

Michael A. Zuckerman (Northwestern), Law Professor Makes a Case Against Automating Legal Writing:

The idea of legal writing as an art form is one of the most difficult concepts for law students to grasp—and understandably so. Students come to law school seeking to understand “the law,” but they soon learn that the law is often unclear. They see that drafting a legal analysis—in the form of a memo, a motion or a brief—is not as mechanical as solving an algebraic equation. ...

Naturally, in the absence of mathematical-type rules, some have tried to replicate them through technological tools. Certain tools do just that, like software that checks quotations for accuracy or scans for case citations, spelling and grammatical errors. Some tools also have motion templates for very basic tasks. Those are often very helpful to the busy writer and do no meaningful harm in the law school environment. Students, for example, have been using spellcheck well before they walked into law school.

Other tools, however, are beginning to go much further and concern me as a law professor., for example, boasts using “natural language processing, machine learning, and artificial intelligence” to make you sound like a Supreme Court justice. Another platform, (a product of CaseText), promises to provide “all the arguments, legal standards and prepackaged research you need to get things done, faster than ever.” It has a motion library that automates the beginning of the drafting process.

Legal technology is rapidly evolving and, to the extent it cannot now, it will soon have the capability to research and write legal briefs, emails and memos, perhaps, even without our input. Whatever benefits advanced legal technology may bring to lawyers, I am concerned about this sort of technology seeping into the legal writing classroom (and to be sure, it may already have—we don’t have reliable metrics). ...

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July 24, 2021 in Legal Ed News, Legal Education | Permalink

Christians & Lederman: How To Read A Tax Statute

This video provides helpful guidelines for reading a tax statute, focusing on the U.S. Internal Revenue Code. This video isn't about canons of interpretation, it's about how to read the statute itself well, with examples. Check out our 6 simple rules!

Note that this video does not focus on other sources of tax law and guidance, such as regulations and case law. Also, like everything from Break Into Tax, it does not provide legal or tax advice.

Break Into Tax thanks Josh Blank and Bill Popkin for comments on a draft of this video and thanks Connor Hasegawa (McGill Law '23) for editing assistance.

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July 24, 2021 in Legal Education, Tax | Permalink

Friday, July 23, 2021

The Charitable Tax Deduction And Civic Engagement

Andrew T. Hayashi (Virginia; Google Scholar) & Justin Hopkins (Virginia; Google Scholar), The Charitable Tax Deduction and Civic Engagement:

In an era characterized by inequalities of income and influence, political polarization, and the segregation of social spaces, the income tax deduction for charitable contributions would appear to abet some of our worst social ills because it allows wealthy individuals to steer public funds to their preferred charities. But we argue that now is the time to expand and refocus—not abolish—the tax subsidy for charitable giving.

Previous assessments of the charitable deduction have focused on how it helps charities but ignored an essential benefit of giving: its effect on the donor. We show that the charitable deduction increases volunteerism along with financial giving, and we report new evidence that volunteerism is associated with broader civic and political engagement, including engagement with people of different cultures, races, and ethnicities.

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July 23, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tax Policy In The Biden Administration

Weekly Legal Education Roundup

Minimizing The Impact Of Cognitive Bias In Transactional Legal Education

Alina Ball (UC-Hastings), Minimizing the Impact of Cognitive Bias in Transactional Legal Education, 52 Conn. L. Rev. 1139 (2021):

This Article explores methods law professors can employ to address the cognitive biases their law students possess. This Article provides concrete thoughts on how transactional law clinics can utilize the social, political, and neuroscience research included in this symposium edition. 

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July 23, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

ABA President Responds To 'Woke Law Schools'

Following up on my previous post:  John O. McGinnis (Northwestern), Why The Lawyers Cartel Is Pushing For Woke Law Schools:  Patricia Lee Refo (President, American Bar Association), The American Bar Association Responds on ‘Woke Law’:

ABA (2022)Regarding Why the Lawyers Cartel Is Pushing for Woke Law Schools op-ed, July 16): What John O. McGinnis describes as proposals of the American Bar Association are in fact proposals of the Council of the ABA Section of Legal Education and Admissions to the Bar. As the national accreditor of law schools, the council serves as an independent arm of the ABA, as required by the U.S. Education Department. Final decisions on accreditation rest with the council.

The council released the proposals Mr. McGinnis refers to for public comment, consistent with council procedures, and received more than three dozen comments. If the council follows past practices, a revised proposal will again be submitted for comment, and no final proposal would be readied until next year at the earliest.

The ABA is steadfastly committed to eliminating bias and enhancing inclusion in the legal profession and the justice system.

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July 23, 2021 in Legal Ed News, Legal Education | Permalink

Martinez Reviews Infanti's Our Selfish Tax Laws

Leo P. Martinez (UC-Hastings), Book Review, 47 Hastings Const. L.Q. 467 (2020) (reviewing Anthony C. Infanti (Pittsburgh; Google Scholar), Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves (MIT Press 2018)) (reviewed by Bridget J. Crawford (Pace; Google Scholar) & Ashley Unangst (J.D. 2020, Pace), A Picture of Society with Critical Tax Theory As Its Interpreter, 41 J. Am. Tax'n Ass'n 128 (2019); and Clint Wallace (South Carolina), Tax Policy and Our Democracy, 118 Mich. L. Rev. 1233 (2020)):

Our Selfish Tax LawProfessor Infanti does everyone a service by using comparative law principles to inform the tax policy debate. The lack of discipline overlap—tax law and constitutional law come easily to mind—only worsens the scarcity of scholarship that examines the Code in nuanced and constructive ways.

In his book, Tony Infanti uses comparative law principles to show how effective it can be to look at tax law in a different light Professor Infanti has chosen two separate areas as his vehicles for comparative illustration and examination of the selfishness of tax law: (1) U.S. housing policy and (2) the concept of the tax unit. With this part of the book, he delves into each area and points out how they fail to serve those who are already underserved. These areas are worthy of his insights because both are fundamental to the way the tax system affects taxpayers.

My friend Professor Emerita Margaret Montoya, has observed “budgets are moral documents; budgets, including tax expenditures, expose and reveal our lawmakers’ values and commitments.” While she is undoubtedly correct and unquestionably eloquent in her observation, Professor Infanti’s book reveals that she was too narrow in her formulation. The Code exposes not only lawmakers’ values and commitments but our own. As Professor Infanti would agree, we can do better.

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July 23, 2021 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

Designing Innovative Clinical Legal Programs To Respond To Changing Social Needs

Atsushi Shiraki (Hawaii; Google Scholar), Designing Innovative Clinical Legal Programs to Respond to Changing Social Needs, 39 Waseda Bull. of Comp. L. 57 (2021):

My argument is that Japanese law schools are urged to flexibly design innovative clinical programs to respond to changing social needs so as to maximize the educational effect for law students. As globalization progresses and technological innovations advance, our world is becoming more complex, unstable, and unpredictable. In this era, people in economic needs are more susceptible to uncertainty. They are more likely to confront unexpected hardship and less likely to afford to retain their attorney even if required.

Some countries have their national legal aid programs in operation under their national statutes. This type of system is relatively rigid and less flexible, and sometimes not good at addressing new types of legal problems. For example, in Japan, we have a national legal aid program, Hoterasu, funded by the government. The targeted fields of the program are fixed by the law and other national regulations. On March 11, 2011, an unprecedented huge earthquake and tsunami hit the northern part of Japan, and many of the victims fell into utmost difficulties for the needs, including legal aids right after the disaster. However, Ho-terasu was not able to expand its services for a free legal consultation to those people affected by this disaster until after April 2012 because it took time to amend the relevant laws. In addition to this, although arbitration is now acknowledged as an effective alternative dispute resolution in Japan, people who hope to use arbitration cannot rely on the program of Ho-terasu. As these examples show, the Japanese national legal aid system is not yet perfect. On the other hand, clinical legal education is free from restrictions of national regulations. This trait should be recognized as one of the hallmarks of legal clinics. Clinical legal programs have inherently the potential to be designed for a more flexible platform to dramatically improve access to justice for socially vulnerable people. Throughout this article, I will explore what type of clinical legal programs are truly needed in our changing society, focusing on the flexibility of clinical legal education. Creating client interest-oriented programs also maximizes student learning outcomes in clinical legal education. Students’ motivation for their participation is maximized, and they can obtain basic legal skills required as a legal professional in the most effective manner, especially when a law student can feel the importance of herself and necessity as a legal professional.

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July 23, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Kissing The Security Blanket Goodbye: How The SECURE Act Will Affect IRA Beneficiaries’ Long-Term Financial Security

Cassidy J. Seamon (J.D. 2021, Boston College), Note, Kissing the Security Blanket Goodbye: How the Secure Act Will Affect IRA Beneficiaries' Long-Term Financial Security, 62 B.C. L. Rev. 357 (2021):

BC Law ReviewThe Setting Every Community Up for Retirement Enhancement Act (the SECURE Act) offers many forms of new support for retirement savings to help more Americans better prepare for their retirement. It also includes a provision that eliminates the stretch payout option for the beneficiaries of inherited individual retirement arrangements (IRAs). Prior to the SECURE Act, beneficiaries of inherited IRAs were able to capitalize on the tax-deferred savings vehicles for the remainder of their lifetimes. After the SECURE Act, the period of taxdeferred investment for beneficiaries was limited to ten years. In eliminating the stretch payout option, Congress opted for a relatively small amount of short-term revenue rather than the long-term financial security of both the IRA owner and the beneficiaries of the IRA based upon closing a perceived loophole.

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July 23, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, July 22, 2021

English Presents International Effective Minimum Taxation – OECD/G20 Pillar Two (“GloBE”) Today At The Indiana/Leeds Summer Zoom Tax Workshop Series

Joachim English (Universität Münster) will present International Effective Minimum Taxation – OECD/G20 Pillar Two (“GloBE”) virtually today as part of the Indiana/Leeds Summer Zoom Tax Workshop Series hosted by Leandra Lederman (Indiana) and Leopoldo Parada (Leeds):

Joachim-englishThe G20/OECD Inclusive Framework is currently deliberating an effective international minimum tax as Pillar Two of its work on the tax challenges arising from digitalization. Political agreement on the so-called Global Anti-Base Erosion Proposal (GloBE) is sought for summer 2021 and prospects currently look good, in particular due to its full endorsement by the Biden administration. This paper outlines the developments leading up to the October 2020 Blueprint on GloBE and provides an assessment of its policy rationale and of certain objections raised in public hearings and in literature. 

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July 22, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Proposition 13, Revisited

Evelyn Danforth (J.D. 2020, Stanford), Note, Proposition 13, Revisited, 73 Stan. L. Rev. 551 (2021):

In 1978, Californians overwhelmingly voted to add a suite of antitax measures to their state constitution. These provisions, together known as Proposition 13, ushered in a new era for the state—one that continues to define the contours of both public finance and private property ownership nearly a half century later.

On the heels of California’s first major political fight over Proposition 13 in decades, this Note seeks to reignite debate in the legal academy over the law’s wisdom as a matter of policy and its compatibility with the federal scheme in which it operates. To do so, this Note makes two distinctive contributions. 

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July 22, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

The Professor As Institutional Entrepreneur

Roger P. Alford (Notre Dame), The Professor as Institutional Entrepreneur, 47 Pepp. L. Rev. 269 (2020):

Law professors are all about ideas, and the creation of an institute, clinic, or center within a law school is the instantiation of an idea. Ideas embodied in law school institutions become crystallized in the fabric of a school, changing its culture, internalizing its values, and reflecting its priorities. Robert Cochran has helped to establish multiple institutes, centers, and clinics at Pepperdine Caruso Law School, and in so doing he has become the law school’s great serial entrepreneur. The institutes Cochran helped to establish have become laboratories to give expression to his ideas about the relationship between faith, ethics, and the law.

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July 22, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Understanding The Metacognitive "Space" And Its Implications For Law Students' Learning

Jennifer Gundlach (Hofstra) & Jessica Santangelo (Hofstra), Understanding the Metacognitive "Space" and Its Implications for Law Students' Learning:

This article builds upon our prior work, contributing to the growing literature addressing development of metacognitive skills in law students. Metacognitive skills include knowledge of strategies that impact thinking and learning, and regulation of thinking and learning related to specific learning tasks. Metacognitive skills are important for learning in law school as well as for successful lawyering.

Herein we describe an empirical study of first-year law students that addresses four primary research questions:

(1) What level of metacognitive knowledge and regulation do law students demonstrate when they enter law school?
(2) Do law students’ metacognitive knowledge and regulation change during the first semester of law school?
(3) Is there a relationship between law students’ academic performance and metacognitive knowledge and regulation?
(4) Does instructional intervention impact law students’ metacognitive knowledge and regulation?

In addressing these questions, we refined the qualitative instruments from our prior study to better capture the interplay between metacognitive knowledge and regulation. In so doing, a metacognitive “space” emerged that provides a visual tool for other researchers interested in assessing student metacognitive skills. We posit that the metacognitive “space” may further serve as a tool for instructors to promote development of metacognitive skills in students, and for students to self-reflect and intentionally regulate their learning.

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July 22, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Chicago-Kent Seeks To Hire A Tax Prof

Hiring Announcement: Chicago-Kent College of Law:

Chicago-KentChicago-Kent College of Law expects to hire one or more faculty to join our vibrant and nationally recognized intellectual community.  We have hiring needs in a variety of areas, including but not limited to:

  • First-Year Subjects, particularly Civil Procedure, Criminal Law, Property, and Torts;
  • Upper-Level Subjects, particularly Race and the Law, Commercial Law, Corporate Law, International Law, and Tax Law.

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July 22, 2021 in Legal Education, Tax, Tax Prof Jobs | Permalink

Florida Coastal Law School Sues U.S. Department Of Education Over Denial Of Participation In Student Loan Program

Jacksonville Daily Record, Florida Coastal Sues U.S. Department of Education:

Florida Coastal (2017)Florida Coastal School of Law sued the U.S. Department of Education in federal court July 20, accusing it of exceeding and abusing its authority and acting arbitrarily and without due process in terminating the school’s participation in the federal student loan program.

The Jacksonville law school also filed a motion for emergency injunctive relief to prevent it from closing at the end of July because of the loan program termination.

Law360, Fla. Law School Accuses DOE Of 'Agenda' Against For-Profits:

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July 22, 2021 in Legal Ed News, Legal Education | Permalink

Varona: Envisioning And Executing The Fourth National People Of Color Legal Scholarship Conference — The Largest Ever Gathering Of Minority Law Scholars

Anthony Varona (Miami), Communion: Envisioning and Executing the Fourth National People of Color Legal Scholarship Conference — The Largest Ever Gathering of Minority Law Scholars, 55 Harv. C.R.-C.L. L. Rev. 761 (2020):

Harvard Civil RightsThis article was written in honor of the Fourth National People of Color Legal Scholarship Conference, held at the American University Washington College of Law in 2019. It reviews the landmarks in the history and development of the National People of Color Legal Scholarship Conference. Considering the spread of racism and xenophobia across the country, the importance of this conference and its contributions to increasing diversity in the legal academy and legal scholarship as a whole cannot be understated. The article discusses efforts and strategies in envisioning, planning, and executing the fourth national conference.

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July 22, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Jay: Down the Rabbit Hole With the IRS’ Challenge To Perpetual Conservation Easements

Jessica Jay (Vermont), Down the Rabbit Hole With the IRS’ Challenge to Perpetual Conservation Easements, Part One (51 Envtl. L. Rep. 10136 (2021)) and Part Two (51 Envtl. L. Rep. 10239 (2021)):

When the Internal Revenue Service began disallowing gifts of perpetual conservation easements for claimed failures of perpetuity requirements, it tumbled land trusts, landowners, and the U.S. Tax Court down the rabbit hole to a baffling land below. The Service’s drop into matters beyond valuation and into elements intended and necessary for easement durability and flexibility has caused a confusing array of Tax Court decisions.

Part One of this two-part Article examines how the Service lures the land conservation community and the Tax Court into Wonderland distortions, and the precarious tower of cards upon which its legal theories rest.

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July 22, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, July 21, 2021

Buchanan Reviews Brooks' A Hitchhiker’s Guide To Comparative Tax Scholarship

Neil H. Buchanan (Florida; Google Scholar), Comparative (Tax) Scholarship Is For Everyone, and Everyone Can Make It Better (JOTWELL) (reviewing Kim Brooks (Dalhousie; Google Scholar), A Hitchhiker’s Guide to Comparative Tax Scholarship, 24 Fla. Tax Rev. 1 (2020):

JOTWELL Tax (2021)Justice Louis Brandeis famously described U.S. states as “laboratories” in which citizens can authorize their sub-national governments to “try novel social and economic experiments.” His logic surely also applies to nations as well, with countries around the world offering a wealth of real-world experiments from which we can all draw valuable insights.

Kim Brooks knows quite a lot about comparative legal scholarship (tax studies in particular), but she understands that most people have only passing familiarity with that vast body of literature. She also understands that most every scholarly enterprise could profit from a comparative perspective but that most scholars do not have the time or inclination to become full-on comparativists. What to do?

Brooks’s answer is to offer what she cheekily refers to as a hitchhiker’s guide, by which she means a practical immersion into just enough of the concepts of comparative scholarship to allow relative novices (like most of us) to enhance our analyses by looking beyond our own countries. She demonstrates, in short, that it is not necessary to become a Comparative Legal Scholar to engage usefully in comparative scholarship, and she shows how to do so carefully and with sufficient sophistication for any particular project. ...

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July 21, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Regulation and Tax in Space

Galya Savir, Regulation and Tax in Space (Wolters Kluwer 2021):

SpaceRegulation and Tax in Space, authored by a tax attorney with first-hand knowledge of the aerospace issues involved, is the first book to delve deep into the yet-to-be-resolved practicalities of taxation of resources mined in space. By international consensus, space is considered as a commons for all humanity. Now, however, as space activities and technologies are chiefly focused on commercial interests in extraterrestrial mineral resources, the mechanisms for allocating space mining resources must be sketched out to balance the efficient use of resources with a fair and stable tax system.

What’s in this book
Arguing that the space mining industry should be regulated in a way that will ensure an attractive investment climate for space entrepreneurs and the existence of a stable fiscal regime that will finance the costs of conservation and utilization of space resources, the author advocates for an international royalty system to help achieve industry goals, such as efficiency, administrative convenience, and sustainability. The book explores the following aspects of the topic:

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July 21, 2021 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink