Paul L. Caron

Friday, June 24, 2022

Weekly SSRN Tax Article Review And Roundup: Saito Reviews Implicit Legislative Bias And The Mortgage Interest Deduction By Osofsky & Thomas

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Leigh Osofsky (North Carolina; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), Implicit Legislative Bias: The Case of the Mortgage Interest Deduction, 56 U.C. Davis L. Rev. ___ (2022).


Why do so many bad tax policies stick around for so long? The story told is often one of public choice theory and capture. Legislators optimize getting reelected and that leads toward catering to certain interest groups. To be sure, this account does have some explanatory force. But there is often more to the story. Using the mortgage interest deduction (MID) as an example, Leigh Osofsky and Kathleen DeLaney Thomas show that cognitive biases, including implicit racial assumptions and other heuristics, also play a role in keeping this problematic policy. These cognitive biases conspire to create a self-reinforcing system that perpetuates racial inequalities. The article is thus important to broader conversations on how to think about enacting tax policy and for the discussions of racial justice.

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June 24, 2022 in Blaine Saito, Scholarship, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

Strong Rebound In Post-Pandemic Law School Graduate Hiring

Law360, Law School Graduate Hiring Rebounds From Pandemic Slump:

Law360Law firms are making up for the COVID-19-driven decline in law school graduate hiring, exceeding numbers in 2021 from the last pre-pandemic year, a report released Wednesday by legal services provider Leopard Solutions says.

The company's research, which tracks more than 1,000 law firms worldwide and nearly two dozen Fortune 500 companies, found that the top 200 firms hired 9,286 graduates in 2021, more than double the 4,093 hires in 2020 and a substantial increase from 2019's 6,296 hires.

Outside the top 200 firms, a little more than 4,000 hires were recorded in 2021, about 1,000 more than in 2020 and a slight increase from 2019's numbers. ...

Georgetown University Law Center, Harvard Law School and Columbia Law School led the pack in percentage of placements at top 200 firms, with more than 12% of new hires coming from those three schools. Other schools above 2% were New York University School of Law; University of California, Berkeley School of Law; Fordham University School of Law; and the University of Pennsylvania Carey Law School.

The report found that a small number of firms were making a majority of hires from U.S. News and World Report Top 10 schools, with 58% going to 20 firms led by Skadden Arps Slate Meagher & Flom LLP with 6.3%. Simpson Thacher & Bartlett LLP, Kirkland & Ellis LLP and Latham & Watkins LLP were also among the firms hiring more than 3% of Top 10 graduates.

June 24, 2022 in Legal Ed News, Legal Education | Permalink

Hemel: The Passthrough Entity Tax Scandal

Daniel J. Hemel (NYU; Google Scholar), The Passthrough Entity Tax Scandal:

Twenty-seven states have enacted laws since 2018 that are designed to provide passthrough entity owners with an unlimited federal tax deduction for state and local business income taxes. These “passthrough entity tax” regimes respond to the December 2017 federal tax law, which imposed a $10,000 cap on the state and local tax deduction. The new state laws generally allow passthrough entities to opt into paying an entity-level state income tax in exchange for a dollar-for-dollar benefit on their owners’ state personal income tax returns. The optional tax has proven to be immensely popular among passthrough entity owners across the country.

But there is a problem with the passthrough entity tax concept: Under the plain text of the Internal Revenue Code, the workaround does not work. The December 2017 law clearly precludes passthrough entities and their owners from deducting state and local income taxes beyond the $10,000-per-individual cap. And the legislative history of the December 2017 law—read in context—aligns with the statutory text.

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June 24, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Surrey Workshop On Fairness In International Taxation

The two-day University of Surrey Fairness in International Taxation Workshop (program) concludes today:

SurreyThe nature of international tax policy has changed dramatically in recent years. Twentieth century international tax policy sought to prevent double taxation of income, to treat taxpayers doing business abroad fairly and to mitigate inefficiencies in the allocation of investment. Recently, the focus of international tax policymaking has shifted, aiming to prevent double non-taxation of corporate income and to achieve a fair division of the resulting tax revenue. This is illustrated most prominently by the recent agreement on a global minimum corporation tax rate. As international tax policy raises its ambitions, there is a need for normative theories adequate to the challenges of this new era.

Fairness in International Taxation brings together legal scholars, political theorists and political philosophers to consider both high-level theories of distributive justice and the normative underpinnings and implications of leading policy proposals. The workshop will cover questions such as how to divide tax revenue from multinationals between nations, how to strike a fair balance between combating profiting shifting and respecting national autonomy, and how to tax internationally mobile workers. By combining theoretical approaches to distributive justice with analysis of the political and institutional context of policymaking we aim to develop new accounts of fairness in international taxation.

U.S. presenters include:

Amanda Parsons (Colorado), The Economic Allegiance of Capital Gains:

How to ensure that multinational companies are paying their “fair share” of taxes in the countries in which they create value has been the subject of lively debate within the international tax community in recent years. These debates have led to significant and exciting reforms, namely the OECD/G20 Inclusive Framework. While these reforms represent an important step towards creating a more coherent and equitable international tax system, the current conversations have overlooked an essential fact. Value created by a company’s business activities manifests itself in two ways—as business income and as an increase in the overall market value of the company, which then translates into capital gains income when investors sell their shares. Thus far, the conversation has focused exclusively on how to divide taxing authority over company income, missing half the story. A truly comprehensive reform that ensures fairness and equity in international taxation must address the question of how taxing authority over income stemming from the growth in company value should be allocated amongst countries.

This paper fills this gap and assesses how taxing authority over this capital gains income should be divided amongst countries under the normative principles that have guided international tax law for the past 100 years.

Adam Kern (Law Clerk, Hon. Jed S. Rakoff, U.S. District Judge Court for the Southern District of New York), Optimal Taxation for the World:

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June 24, 2022 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Thursday, June 23, 2022

Davis: Taxing Choices

Tessa Davis (South Carolina), Taxing Choices, 16 Fla. Int'l U. L. Rev. __ (2022):

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice or agreement on whether and when it matters. 

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June 23, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Inazu: Beyond Unreasonable

John Inazu (Washington Univ.), Beyond Unreasonable, 99 Neb. L. Rev. 375 (2020):

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to reach conclusions “beyond a reasonable doubt,” and claims of self-defense succeed or fail on reasonableness determinations. But as any first-year law student can attest, the line between reasonable and unreasonable is not always clear. Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale—we might say they are beyond unreasonable. Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same. These distinctions raise vexing questions: What is it that makes us feel differently about these activities? Mere unfamiliarity? Moral condemnation? Relative utility? Or something else altogether? Moreover, who exactly is the “we” forming these judgments?

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June 23, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Shaviro: Bonfires Of The American Dream In American Rhetoric, Literature And Film

Daniel Shaviro (NYU), Bonfires of the American Dream in American Rhetoric, Literature and Film (2022):

Shaviro 3How could American social solidarity have so collapsed that we cannot even cooperate in fighting a pandemic? One problem lies in how our values mutate and intersect in an era of runaway high-end inequality and evaporating upward mobility. Under such conditions, tensions rise between our egalitarian and democratic traditions on the one hand, and what we often call the “American Dream” of self-advancement and due reward on the other.

In our current Second Gilded Age, as in the first one from the late nineteenth century, the results of economic competition appear to suggest, falsely, that some of us are “winners” who deserve everything they have, while others are contemptible “losers.” The rich ostensibly owe the poor nothing — not even compassion or respect, and certainly not material aid through government.

In Bonfires of the American Dream, Daniel Shaviro develops these themes through close studies, in social context, of such classic novels and films as Atlas ShruggedThe Great GatsbyIt’s a Wonderful Life, and The Wolf of Wall Street. He thereby helps to provide a better understanding of what, apart from racism, has in recent years caused things to go so wrong culturally in America.

Daniel Shaviro, the Wayne Perry Professor of Taxation at NYU Law School, writes mainly about tax policy and inequality. Anthem Press published his well-regarded prior literary study, Literature and Inequality, in 2020.

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June 23, 2022 in Book Club, Legal Education, Tax | Permalink

Faculty Salaries Fall 5%, The Biggest One-Year Drop In History

Chronicle of Higher Education, Faculty-Pay Survey Records the Largest One-Year Drop Ever:

Average full-time faculty salaries decreased by 5 percent in the 2021-22 academic year when adjusted for inflation, the largest single-year drop in the 50 years that the American Association of University Professors has tracked academic wages.

AAUP, The Annual Report on the Economic Status of the Profession, 2021-22:

  • From 2020–21 to 2021–22, average salaries for full-time faculty members increased 2.0 percent, consistent with the flat wage growth observed since the Great Recession of the late 2000s.
  • Real wages for full-time faculty fell below Great Recession levels in 2021, with average salary falling to 2.3 percent below the 2008 average salary, after adjusting for inflation.
  • Real wages for full-time faculty members decreased 5.0 percent after adjusting for inflation, the largest one-year decrease on record since the AAUP began tracking this measure in 1972.

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June 23, 2022 in Legal Ed News, Legal Education | Permalink

Watchdog Says IRS Backlog Of Tax Returns Is Growing, Contradicting Biden Administration’s Repeated Claims Of Significant Progress

New York Times, Millions of Tax Returns Have Not Been Processed as the I.R.S. Tries to Clear Its Backlog:

Millions of 2021 taxpayer returns filed with the Internal Revenue Service have yet to be completed, and the agency is facing a larger-than-normal backlog at this point in the tax season, the Treasury Department said on Tuesday [IR-2022-128, IRS Continues Work on Inventory of Tax Returns; Original Tax Returns Filed in 2021 to be Completed This Week (June 21, 2022)].

More than twice as many tax returns await processing “compared to historical norms at this point in the calendar year,” according to a letter sent to lawmakers by top Treasury and I.R.S. officials [I.R.S. and Treasury Letter to Lawmakers (June 21, 2022)].

Wall Street Journal, IRS Is Falling Further Behind on Tax-Return Backlog, Watchdog Says:

The Internal Revenue Service faces daunting mathematical and logistical challenges in its attempt to largely eliminate its tax-return backlog by the end of 2022, an agency watchdog said Wednesday.

The backlog of unprocessed paper tax returns was 21.3 million at the end of May, up 1.3 million from a year earlier, according to Erin Collins, the national taxpayer advocate, who runs an independent taxpayer-service operation within the IRS. Agency officials have said they aimed to return the backlog to a “healthy” level in the next six months.

“Unfortunately, at this point the backlog is still crushing the IRS, its employees, and most importantly, taxpayers,” Ms. Collins wrote in a report to Congress [National Taxpayer Advocate Objectives Report To Congress Fiscal Year 2023; IR-2022-129, National Taxpayer Advocate Issues Midyear Report to Congress; Expresses Concern About Continued Refund Delays and Poor Taxpayer Service (June 22, 2022)].

Politico, Backlog of Unprocessed Tax Returns Is Growing, Watchdog Says:

The report contradicts the Biden administration’s repeated claims that it is making significant progress in catching up on the filings.

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June 23, 2022 in IRS News, Tax | Permalink

Book By Dan Markel's Mother: Murder, Grief, And The Trial

Ruth Markel, The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life (2022):

Markel BookRuth Markel is the mother of the late Dan Markel, a noted law professor who was murdered in Tallahassee, Florida in 2014.

In The Unveiling, she describes her experiences since the day of Dan’s death from several distinct perspectives:

  • As a devastated mother with the unique human perspective of becoming a homicide survivor and victim.
  • As a woman whose attempts to achieve normalcy and live a healthy life are continually interrupted by painful reminders, a rollercoaster of hearings, frequently changing trial dates, verdicts, and appeals.
  • As an engaged citizen using what she has learned to help other victims of homicide and violent crimes recover from trauma and begin an optimistic outlook on life.
  • As an insider who shows how our collective network of family, friends, and experts—including a murder coach—have helped her family remain involved, motivated, and hopeful.
  • As a grandmother who had not been allowed to see her grandchildren in many years, she used advocacy to inspire the Florida State Legislature to pass a grandparent visitation bill.
  • And as an experienced author of nine books using the written word to effectively address the shift from grief to promise.

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June 23, 2022 in Book Club, Legal Ed News, Legal Education | Permalink

Wednesday, June 22, 2022

Administering Taxes Democratically?

Clint Wallace (South Carolina; Google Scholar) & Jeff Blaylock (J.D. 2019, South Carolina), Administering Taxes Democratically?, 94 Temp. L. Rev. 49 (2021) (online appendix) (reviewed by Blaine Saito (Northeastern; Google Scholar) here): 

This Article queries how the administrative tax guidance used to implement the Tax Cuts and Jobs Act of 2017 has met the normative commitment to democratic legitimacy that often animates general administrative law. This Article argues that several reforms to the tax administrative process that came to fruition in recent years have failed to advance democratic tax administration. 

This argument is made by analyzing each piece of administrative guidance issued to implement the Tax Cuts and Jobs Act, as compared to similar guidance issued to implement tax cuts in 2001, as well as the Tax Reform Act of 1986. To do this, we created a database of 864 guidance documents issued across six total years in three time periods: 1986–1988, 2001–2003, and 2017–2019. Our examination shows that although tax procedures may now better conform to procedures applied by other administrative agencies, these changes have in some respects set back the pursuit of democratic legitimacy in tax administration.

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June 22, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

So Far, Public Comments Largely Support ABA Proposal To Make Law School Admission Tests Optional

Following up on my previous posts (links below):, So Far, Public Comments Largely Support ABA Proposal to Make Law School Admission Tests Optional:

ABA Legal Ed (2021)Thus far, at least, there seems to be support for doing away with the standardized testing requirement for ABA-accredited law schools.

The Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar voted in May to send out proposed amendments to Standard 503 for public comment. Of the eight comments that have been posted so far, seven are in favor of the proposed changes.

The changes include making admission tests for law school, such as the Law School Admission Test (LSAT), optional instead of mandatory.

“I encourage the ABA to support and press for an end to an archaic and frankly obsolete metric of law school admission,” Sophie Loeb wrote.

Loeb said she graduated “UC Berkeley in 2018 … with a 3.89 GPA, two minors, and with an honors thesis. … My academic aptitude for undergraduate studies as well as for future law school admission is much more based on academic diligence, perseverance, dedication to the field, and other ‘soft’ factors.” ...

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June 22, 2022 in Legal Ed News, Legal Education | Permalink

ProPublica: The Billionaire GOP Mega-Donor Who’s Gaming The Tax System

ProPublica, Meet the Billionaire and Rising GOP Mega-Donor Who’s Gaming the Tax System:

Pro PublicaSusquehanna founder and TikTok investor Jeff Yass has avoided $1 billion in taxes while largely escaping public scrutiny. He’s now pouring his money into campaigns to cut taxes and support election deniers.

One day in July 1985, three young men from Philadelphia, their lawyer and a burly Pinkerton guard arrived at a horse track outside Chicago carrying a briefcase with $250,000 in cash.

Running the numbers on a Compaq computer the size of a small refrigerator, Jeffrey Yass and his friends had found a way to outwit the track’s bookies, according to interviews, records and news accounts. A few months earlier, they’d wagered $160,000, gambling that, with tens of thousands of bets, they could nail the exact order of seven horses in three different races. It was a sophisticated theory of the racing odds, honed with help from a Ph.D. statistician who’d worked for NASA on the moon landing, and it proved right. They bagged $760,000, then the richest payoff in American racing history.

But that summer day, when they presented their strikingly long list of bets at the track window, they were turned away. Their appeal to the track owner got them ejected. Yass, just 27, then sued for the right to place the bets. The track’s lawyer fumed to a federal judge that the men were trying to corner the betting market “through the use of their statistics and numbers.”

Yass lost, but that year he and his friends repeated variations of the strategy at horse and greyhound tracks around the country. Then they decided to turn their focus from a world of hundreds of thousands of dollars to a world of billions: Wall Street.

Four decades later, the firm he and his friends founded, Susquehanna International Group, is a sprawling global company that makes billions of dollars. Yass and his team used their numerical expertise to make rapid-fire computer-driven trades in options and other securities, eventually becoming a giant middleman in the markets for stocks and other securities. If you have bought stock or options on an app like Robinhood or E-Trade, there’s a good chance you traded with Susquehanna without knowing it. Today, Yass, 63, is one of the richest and most powerful financiers in the country.

But one crucial aspect of his ascent to stratospheric wealth has transpired out of public view. Using the same prowess that he’s applied to race tracks and options markets, Yass has taken aim at another target: his tax bill.

There, too, the winnings have been immense: at least $1 billion in tax savings over six recent years, according to ProPublica’s analysis of a trove of IRS data. During that time, Yass paid an average federal income tax rate of just 19%, far below that of comparable Wall Street traders.

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June 22, 2022 in Tax, Tax News | Permalink

Rebranded Vermont Law & Graduate School Aims To Increase Enrollment By 100 Students With Three New Master’s Degree Programs

Vermont Digger, Vermont Law School to Rebrand, Add Master’s Degree Programs:

Vermont (2022)Vermont Law School will add three master’s degree programs and rebrand as Vermont Law and Graduate School, school administrators announced Tuesday, adding that the changes will not impact operations at its South Royalton campus.

The law school unveiled the new name and logo at a Burlington press conference, outlining a transformation that will draw from an anonymous $8 million donation to help add two master’s programs in environmental policy and a master’s degree in animal law policy, starting in 2023. ...

Vermont Law School currently has about 450 residential students and 150 online-only students in both its law and master’s degree programs, according to McCormack. Administrators hope to add 100 students over the next few years.

The first students in the new courses will begin classes in the fall of 2023. School administrators said the change will involve hiring three or four new faculty members and a course designer, and expansion of the school’s footprint in Burlington.

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June 22, 2022 in Legal Ed News, Legal Education | Permalink

ProPublica: The Tax Scam That Won’t Die

ProPublica, The Tax Scam That Won’t Die:

Pro PublicaFor the past six years, government officials have tried ever harder to kill a type of tax avoidance scheme that the Internal Revenue Service has branded “abusive” and among “the worst of the worst tax scams.” The IRS has pursued tens of thousands of audits and warned of hefty penalties facing anyone who exploits it. The Justice Department has targeted top promoters of what it calls “fraudulent” deals with criminal charges and civil lawsuits, yielding several guilty pleas and a civil settlement. In Congress, Democrats and Republicans have united to sponsor legislation to abolish the practice.

But the industry has fought back with a coterie of lobbyists, including a onetime member of Congress long viewed as a liberal lion, Henry Waxman. The battle shows how even on those rare occasions when both parties agree to take action, well-funded interests can frustrate a solution.

The result: The use of the scheme continues unabated. Along the way it has cost the U.S. Treasury billions in lost taxes, according to the IRS. ...

The government is targeting a tax deduction that goes by the cumbersome name “syndicated conservation easement,” which exploits a charitable tax break that Congress established to encourage preservation of open land. Under standard conservation easements, landowners who give up development rights for their acreage, usually by donating those rights to a nonprofit land trust, get a charitable deduction in return. When conservation easements are used as intended, both the public and the owner of the property benefit. A piece of pristine land is preserved, sometimes as a park that the public can use, and the donor gets a tax break.

The syndicated versions are different. Instead of seeking to protect a bucolic reserve for wildlife or humans, profit-seeking intermediaries have turned the likes of abandoned golf courses or remote scrubland into high-return investment vehicles. These promoters snatch up vacant land that till then was worth little. Then they hire an appraiser willing to declare that it has huge, previously unrecognized development value — perhaps for luxury vacation homes or a solar farm — and thus is really worth many times its purchase price. The promoters sell stakes in the donation to individuals, who claim charitable deductions that are four or five times their investment. The promoters reap millions in fees. ...

Today, the fight has taken on a grinding quality. By the IRS’ most recent reckoning, the use of syndicated easements grew from 249 deals in 2016, generating $6 billion in charitable deductions, to 296 deals in 2018, producing $9.2 billion in deductions. (By contrast, more than 2,000 nonsyndicated easement deductions have resulted in about $1 billion in annual deductions.)

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June 22, 2022 in Tax, Tax News | Permalink

Free Webinar Today On Job Opportunities In The Office Of Tax Policy (U.S. Treasury Department)

The ABA Tax Section is hosting a free webinar today at 1:00 PM ET on Opportunities to Influence Change: Legal Jobs in the Office of Tax Policy (register here):

ABA Tax SectionThe Office of Tax Policy at the Treasury Department is responsible for developing and implementing the tax policies and programs of the United States, drafting tax regulations, negotiating tax treaties, and providing legal analysis of tax policy decisions. But what does all of that really mean? Please join members of the Office of Tax Policy to learn about the day-to-day experience of working as an attorney-advisor, and to discover potential career opportunities that let you be on the forefront of developments in tax law, all while serving the public interest.

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June 22, 2022 in ABA Tax Section, IRS News, Legal Education, Tax | Permalink

Tuesday, June 21, 2022

Tax Harmony: The Promise And Pitfalls Of The Global Minimum Tax

Reuven S. Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Utah, moving to Cardozo; Google Scholar), Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, 43 Mich. J. Int'l L. __ (2022):

The rise of globalization has become a double-edged sword for countries seeking to implement a beneficial tax policy. On one hand, there are increased opportunities for attracting foreign capital and the benefits that increased jobs and tax revenue brings to a society. However, there is also much more tax competition among countries to attract foreign capital and investment. As tax competition has grown, effective corporate tax rates have continued to be cut, creating a “race-to-the-bottom” issue.

In 2021, 137 countries forming the OECD/G20 Inclusive Framework on BEPS passed a major milestone in reforming international tax by successfully introducing the framework of a global minimum corporate tax, known as Pillar Two. It aims to set a floor for corporate tax rates with various corrective measures so that multinational enterprises’ income will be taxed once in either source country or residence country at a substantive tax rate. Hence, Pillar Two is the first implementation of the “single tax principle” at the global level. Because Pillar Two requires an unprecedented amount of coordination among countries, it is important to understand Pillar Two thoroughly so that countries can maneuver the challenges of implementation, while still enjoying the ultimate benefit that would come from this global tax harmony.

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June 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Legal Ed News Roundup

Tax Prof Debby Geier Retires After 33 Years At Cleveland State

Lee Fisher (Dean, Cleveland-Marshall), Changing of the Guard:

GeierProfessor Geier clerked for the Honorable Monroe G. McKay of the United States Court of Appeals for the Tenth Circuit. She worked in the tax group of the Wall Street firm of Sullivan & Cromwell in New York before joining the CSU C|M|LAW faculty to teach Tax law. In an effort to reduce student textbook costs, she is the sole author of U.S. Federal Income Taxation of Individuals, an e-textbook that students can download for free. Professor Geier has been a Visiting Professor of Law at Washington University, the University of Michigan, the University of Florida in Gainesville and the University of Alabama. She is a member of the American Law Institute and has served both as a member of the Executive Committee and as Chair of the Tax Section of the Association of American Law Schools.

In retirement, Professor Geier plans to continue updating her e-textbook in addition to teaching. She intends to do more traveling and develop her photography skills.

What have you enjoyed most about your time at C|M|LAW?
"What I have enjoyed the most in my 33 years at Cleveland State University's College of Law is its students. I have had the privilege of being a visiting professor at four other law schools, and I was always happy to come home. As I say in the Preface to my textbook, which is dedicated to my CSU students, 'you rock!'."

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June 21, 2022 in Legal Education, Tax, Tax Prof Moves | Permalink | Comments (2)

After Failed Search Following Resignation Of Dean Due To Mishandling Of Sexual Misconduct Allegations, Tax Prof Elaine Gagliardi Named Interim Dean At Montana Law School

Following up on my previous post, Montana Law School Dean, Associate Dean Resign Following Student Walkout Over Mishandling Of Sexual Misconduct Allegations; Provost Temporarily Takes Control:  Missoulian, University of Montana Law School Names Interim Dean After Search Comes Up Short:

GagliardiThe search for a new dean for the University of Montana’s Alexander Blewett III School of Law returned to square one after offers to some of the finalists were rejected.

Dave Kuntz, the university’s director of strategic communications, confirmed that the university did make offers to finalists that visited campus, but did not specify how many offers were made or other details. ...

Beginning July 1, the law school will be led by Elaine Gagliardi as interim dean. Gagliardi has served as a faculty member at the university since 2001, including a wide range of administrative capacities such as Associate Dean of Academic Affairs from 2007-2010 and Associate Dean of Students from 2015-2017...

Former law school Dean Paul Kirgis resigned from the position in early October following a student-led walkout after women from the law school said that he and Associate Dean Sally Weaver discouraged them from reporting allegations of sexual harassment and assault to the university’s Office of Equal Opportunity and Title IX, initially reported by the Daily Montanan.

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June 21, 2022 in Legal Ed News, Legal Education, Tax, Tax Prof Moves | Permalink

Lesson From The Tax Court: How To Tell When Land Is Held As A Capital Asset

Camp (2021)When a taxpayer buys land and later sells it, the character of the resulting gain or loss will depend on whether taxpayer held the land as an investment or instead held it like inventory, to be sold to customers as part of a trade or business.  It is not always easy to tell how the land is being held and courts look at a variety of factors.

The lesson I take from William E. Musselwhite Jr. and Melissa Musselwhite v. Commissioner, T.C. Memo. 2022-57 (June 8, 2022) (Judge Ashford), is that how the taxpayer self-reports the activity in years prior to the year of disposition is one important factor in determining when land is held as investment.  There, Mr. Musselwhite acquired four lots in what was to become a residential development.  No development happened.  For years he consistently reported holding the lots for investment.  But when he eventually sold them for a big loss he and his wife reported the loss as ordinary, claiming on that return that he held the land for development.  In an informative opinion, Judge Ashford held Mr. Musselwhite to his prior reporting position.  Details below the fold.

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June 21, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Texas Southern Law School Replaces Dean After Less Than Three Years Amidst Continued Bar Challenges, Fallout From Admissions Scandal

Following up on my previous posts (links below):  Houston Chronicle, TSU Replaces Law School Dean After Continued Troubles, Low Bar Scores:

Thurgood Marshall Logo (2017)Texas Southern University’s law school dean is out of the job, signaling continued tumult for a program recovering from an admissions scandal that toppled the former university president.

Joan R.M. Bullock served almost three years as the Thurgood Marshall School of Law’s first female dean - and tenth dean overall. While she took the job intending to improve the school’s standards, Bar rates remain low: Between one-third and one-half of Texas Southern students pass each qualifying exam, regularly ranking last among the state's schools.

Texas Southern on Thursday announced professor Okezie Chukwumerije as the law school’s interim dean. In an email to students, faculty and staff, the university did not mention Bullock and only confirmed that the change is effective immediately. ...

The reason for Bullock’s departure is unclear, as TSU refused to comment on the personnel issue. Bullock also declined to comment. ...

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June 21, 2022 in Legal Ed News, Legal Education | Permalink

TaxProf Blog Holiday Weekend Roundup

Monday, June 20, 2022

Osofsky & Thomas: Implicit Legislative Bias — The Case Of The Mortgage Interest Deduction

Leigh Osofsky (North Carolina; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), Implicit Legislative Bias: The Case of the Mortgage Interest Deduction, 56 U.C. Davis L. Rev. ___ (2022):

UC Davis Law ReviewThe home mortgage interest deduction is over 100 years old. The deduction has been subject to increasing and, at times, withering criticism from commentators. Scholars have argued that the mortgage interest deduction may be a particularly ineffective and regressive way to subsidize homeownership. Other scholars have made the important point that the mortgage interest deduction has a disparate racial impact: homeowners are disproportionately white, so the deduction disproportionately benefits white people at the expense of people of color. Yet, the mortgage interest deduction has retained remarkable and costly staying power despite all the critiques.

How has the mortgage interest deduction persisted over a century, despite extensive critique? We argue that an underappreciated part of the story of the mortgage interest deduction is how its very creation arose out of implicit racial bias and other cognitive biases. First, scholars and policymakers ignored the racialized history of homeownership in the United States and relied on racist tropes in studying the potential economic benefits of the deduction. After such associations occurred, policymakers misattributed to homeownership benefits that were really, at least in part, benefits that flowed from whiteness. Perceiving positive benefits from homeownership, legislators viewed it as a good worth subsidizing through the tax system. Cognitive biases such as confirmation bias then made it unlikely that, once in place, the mortgage interest deduction would be substantially changed.

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June 20, 2022 in Legal Education, Scholarship, Tax, Tax Scholarship | Permalink

Juneteenth And Tax Law

Kay Bell (Don't Mess With Taxes), Juneteenth: A Time to Celebrate and Move Forward, Including Within the Tax Code:

JuneteenthIt's the second year of Juneteenth being celebrated as a federal holiday. Since today is Sunday, federal offices will observe it on Monday, June 20. ...

Now national, but not recognized in all states:  While Texas' continued enslavement of its Black residents was the awful reason for the order, at least my home state was the first to make Juneteenth an official state holiday. That happened in 1980. However, federal June 19 action notwithstanding, today isn't recognized as a legal holiday in most states.

The Pew Charitable Trusts story on Juneteenth and where it is and isn't celebrated at the state level earns the ol' blog's first Sunday Shout Out. ...

Taxes and racial bias: Finally, since this is a tax blog, today's third Juneteenth shout out goes to Brooklyn Law School professor Steven Dean's paper Filing While Black: The Casual Racism of the Tax Law [2022 Utah L. Rev. __ (reviewed by Young Ran (Christine) Kim (Utah, moving to Cardozo; Google Scholar) here):

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June 20, 2022 in Legal Education, Tax | Permalink

Are Legal Lessons Learned In The Trenches More Valuable Than Those Learned In Law School?

ABA Journal Op-Ed:  Are Legal Lessons Learned in the Trenches More Valuable Than Those Learned in Law School?, by Marcel Strigberger ("after 40-plus years of practicing civil litigation in the Toronto area, [he] closed his law office and decided to continue to pursue his humor writing and speaking passions"; author, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging (2021)):  

BoomersIs law school learning always practical? According to Albert Einstein, “Education is what remains after one has forgotten what one has learned in school.”

Hmmm. ...

I remember our first torts class. We studied an 1800s British case, Winterbottom v. Wright. Winterbottom was a postal coach driver who sued Wright, whose job it was to repair coaches, after Winterbottom sustained injuries he attributed to Wright’s faulty repair of the vehicle. He sued Wright but lost, as the court ruled there was no privity of contract between him and the repairman. Wright owed no duty to Winterbottom. Badda boom. Badda bing. (The latter are my judicial words.)

At the end of the class, I was proud of my new acquired knowledge, knowing I was on my way to becoming a lawyer. ...

[D]oes this exciting academic inculcation prepare us sufficiently for practice in the real world? The next stage after law school was articling at a law firm. A seasoned trial lawyer named Hank interviewed me.

I proudly handed him my law school transcript, showing great grades—the highest being an A in admiralty (maritime) law. Hank chuckled and said, “Next time two ships collide on the streets of downtown Toronto, you’ll be the first person I’ll call.”

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June 20, 2022 in Legal Ed News, Legal Education | Permalink

Town And Gown, Malibu And Pepperdine

Wall Street Journal, The New HOTTER Malibu:

Decades after Larry Ellison started buying up Malibu real estate, a new group of billionaires is sending prices in the famed beach city higher. Not everyone is happy about it. ...

WSJMalibu, a beach city about 30 miles from downtown Los Angeles, has changed drastically over the last few decades, morphing from a largely undeveloped surf mecca into a pricey playground for celebrities and the uber-wealthy. The change—spurred in part by investment from tech titan Larry Ellison—has sent Malibu real-estate values skyward.

Malibu home prices have climbed even higher since the Covid-19 pandemic. As it became clear that the crisis would continue for some time, some of the country’s wealthiest people fled to Malibu, lured by its uncrowded beaches, sunny weather and relaxed, surftown vibe. They vied to purchase the most sought-after beachfront and blufftop properties, picking over the already small number of available homes for sale. Much like other high-end markets across the country with limited inventory, the Malibu market “took off like a rocket ship” .... And despite mounting evidence that wealthy buyers are starting to pull back from luxury markets across the county, activity in Malibu shows little sign of letting up.

Malibu residents say they are accustomed to celebrities and billionaires moving in from out of town, but even they are shocked by the city’s newest round of big-ticket home sales. The Bohemian character that lured wealthy buyers to Malibu in the first place, some locals said, is on the verge of being irrevocably lost. ...

MalibuOverall, the number of Malibu home sales of $5 million and up swelled to 81 last year, up from 39 in 2019, according to appraisal firm Miller Samuel. In the first quarter, the median price for a single-family home shot to $6.99 million, compared with $4.25 million during the same period of 2021. ...

For many wealthy buyers, the allure of Malibu is its relaxed atmosphere, which allows them to disappear from public view. “When these people come here, they are different,” Mr. Stern said. “People who you normally see on TV all dressed up, here they don’t shave or comb their hair.”

Another reason for Malibu’s popularity among the uber-wealthy is that its beaches are significantly less crowded than those in Santa Monica or Venice Beach, and lack souvenir stands, beach vendors and amusements.

And then there’s Larry Ellison, the co-founder of tech giant Oracle. Mr. Ellison became synonymous with Malibu starting in the early 2000s, when he started buying up numerous homes in the beach city. He now owns around 10 homes on Carbon Beach, and locals say they occasionally spot Mr. Ellison around town or on his yacht docked off Paradise Cove.

But Mr. Ellison didn’t stop at buying homes. He also has ownership stakes in multiple buildings and commercial ventures that helped convert Malibu from a rustic and rundown surf city into an upscale destination, according to his real-estate agent, Kurt Rappaport of Westside Estate Agency. Mr. Ellison turned the PierView Restaurant and Cantina, a casual local eatery popular with students from nearby Pepperdine University, into a high-end Asian restaurant before turning it over to the private club Soho House. Another casual restaurant, known as the Windsail, was transformed into a Nobu restaurant, attracting celebrities such as the Kardashians and Justin Bieber. The Casa Malibu Inn, a low-key 1950s hotel, became the Japanese-inspired Nobu Ryokan Hotel, where rates start at a minimum of $2,000 a night. ...

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June 20, 2022 in Legal Education, Pepperdine Legal Ed | Permalink

Sunday, June 19, 2022

Father's Day And The Prodigal Son

The Federalist Op-Ed:  What I Learned From My Father About The Prodigal Son, by Mike Kerrigan (Hunton Andrews Kurth, Charlotte, NC):

Prodigal SonI was driving home from Mass with my family on Sunday morning. There the readings had included the Gospel of Luke’s parable of the prodigal son [Luke 15:11-32]. It’s the tale of the headstrong son who demanded and squandered his inheritance and then begged for forgiveness, his older brother who never rebelled, and the father who loved them both.

I had always identified with the prodigal son, and figured everyone else did, too. ... I said this to my wife, Devin, as we drove home from church. She said she understood the sentiment, but admitted at times feeling a certain kinship with the dutiful elder son. We clearly had interpreted the lesson differently, which surprised me. I decided to consult my father to break the tie.

I called him from the car, asking which character in the parable he identified with most. “Easy,” he answered. “The father.” Believing God alone had been, well, perpetually cast in that role, I never thought picking the father was an option. It seemed my dad, when faced with multiple-choice options (a) or (b), was puckishly choosing (c) as a write-in answer. Or so I thought.

Weeks later I shared the breezy exchange with Dr. William Muse of Knoxville, Tennessee. Muse, a contemporary of my father. ... “Read this,” he said, pitching me Catholic priest and writer Henri Nouwen’s spiritual classic The Return of the Prodigal Son. ... “Your dad is not wrong. None of you are.”

I devoured the book. It taught me that while we tend to be each actor — prodigal son, elder son, even the father — at different stages of life, we ultimately are called to progress to spiritual fatherhood. That is, we’re called to love one another exactly as the compassionate father did, with self-emptying hearts of mercy.

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June 19, 2022 in Faith, Legal Education | Permalink

'I Can Think Of No Better Father’s Day Gift' Than Passage Of Markel Act Giving Child Visitation Rights To Grandparents Of Deceased Parent

Florida Politics, Advocates Urge Governor to Take Stand for Florida Dads with ‘Markel Act’:

Markel & ParentsOn the eve of Father’s Day weekend, Gov. Ron DeSantis is requesting all remaining bills to be sent his way, including at least two that relate directly to Florida dads.

One — HB 1119, known as the ‘Markel Act’ — has a particular focus on the protection of parental rights, and parental life.

How does a bill that creates limited access to courts for grandparents who have lost a child serve to protect the rights of parents? Here’s how: it creates a disincentive for families to see murder as a viable solution to custody battles. ...

The bill was inspired by the 2014 murder of FSU law professor Dan Markel, who authorities say was murdered by hitmen hired by his ex-wife’s family to secure her ability to move to Miami with her and Markel’s two sons. To date, the three hired accomplices have been brought to justice, while the ex-wife, Wendi Adelson, her brother Charlie Adelson, and her mother Donna Adelson, have been named by prosecutors as co-conspirators. Just after the initial set of arrests, when authorities implicated the Adelson family in the murder plot, Wendi cut off all contact between Markel’s parents and their grandsons. ...

“I can think of no better Father’s Day gift than creating hope for reunification between family members, who as victims of crime themselves, deserve each other’s comfort,” said Karen Cyphers, on behalf of the grassroots group Justice for Dan.

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June 19, 2022 in Legal Ed News, Legal Education | Permalink

Gallup: Belief In God Falls To All-Time Low In U.S.: 81%, Down 6 Percentage Points (12 Percentage Points Among Democrats)

Gallup, Belief in God in U.S. Dips to 81%, a New Low:

The vast majority of U.S. adults believe in God, but the 81% who do so is down six percentage points from 2017 and is the lowest in Gallup's trend. Between 1944 and 2011, more than 90% of Americans believed in God. ... 


Belief in God has fallen the most in recent years among young adults [down 10 percentage points] and people on the left of the political spectrum (liberals [down 11 percentage points] and Democrats [down 12 percentage points]). ...

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June 19, 2022 in Faith, Legal Education | Permalink

NY Times: State Judge Rules Yeshiva University Must Recognize LGBTQ Student Club

New York Times, Yeshiva University Must Recognize L.G.B.T.Q. Club, Judge Says:

YU Pride AllianceStudents at Yeshiva University in New York have tried for years to get their school to recognize an L.G.B.T.Q. student club, pushing back on the administration’s argument that its status as a Modern Orthodox Jewish school exempted it from the city’s human rights law.

Last year, a group of students and alumni filed a lawsuit, and on Tuesday a state judge ruled in their favor, declaring that Yeshiva is not a religious institution and so must follow the law and recognize the club [YU Pride Alliance v. Yeshiva University].

Bina Davidson, who had been the co-president of the Y.U. Pride Alliance until she graduated in January, said she and other students were thrilled about the ruling. But their victory may be short lived.

Administrators at Yeshiva, which is named after a type of traditional Jewish religious school that is found all over the world, vowed to appeal. They also said they would ask the courts to stay the decision.

“Any ruling that Yeshiva is not religious is obviously wrong,” said Hanan Eisenman, a university spokesman, in a statement. “As our name indicates, Yeshiva University was founded to instill Torah values in its students while providing a stellar education, allowing them to live with religious conviction as noble citizens and committed Jews.”

The court’s decision, he said, “violates the religious liberty upon which this country was founded” and “permits courts to interfere in the internal affairs of religious schools, hospitals and other charitable organizations.” (While many non-Orthodox Jewish congregations are supportive of L.G.B.T.Q. rights, Orthodox leaders tend to interpret the Torah as promoting more traditional ideas of gender and sexuality.)

The dispute at Yeshiva is the latest front in a heated nationwide debate over the limits of religious freedom and whether houses of worship, religiously affiliated companies and organizations or even pious individuals can be compelled to provide employment or other public accommodations to people with differing views. ...

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June 19, 2022 in Faith, 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 joining the list at #3, #4, and #5:

  1. SSRN Logo (2018)[463 Downloads]  A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, by Andrew Granato (J.D.|Ph.D., Yale; Google Scholar)
  2. [364 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
  3. [209 Downloads]  Designing an Equitable Border Carbon Adjustment Mechanism, by Ivan Ozai (Osgoode Hall; Google Scholar)
  4. [207 Downloads]  Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, by Reuven Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Utah; Google Scholar; moving to Cardozo)
  5. [162 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)

June 19, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, June 18, 2022

This Week's Ten Most Popular TaxProf Blog Posts

How Introverted Law Students Can Thrive: Become Tax Lawyers|Tax Professors (And Deans)

John Lande (Missouri), Introversion, the Legal Profession, and Dispute Resolution:

Quiet Introverted LawyerThis article analyzes introversion and discusses the implications of the large proportion of people who are introverted, including many lawyers and other dispute resolution professionals. It relies on two analytical books, Quiet: The Power of Introverts in a World That Can't Stop Talking by Susan Cain and The Introverted Lawyer: A Seven-Step Journey Toward Authentically Empowered Advocacy by Brooklyn Law Professor Heidi K. Brown. It also uses insights from two memoirs: Sorry I’m Late, I Didn’t Want to Come: One Introvert's Year of Saying Yes by Jessica Pan, and Playing with Myself by Randy Rainbow.

There is no agreement about the definition of introversion, but it is a very real phenomenon, even though there isn’t a consistent definition and people may experience and manifest it differently. Introverted people often struggle because of what Susan Cain calls the “extrovert ideal,” which dominates much of Western society. In this context, introversion is viewed as a “second-class personality trait, somewhere between a disappointment and a pathology.” Based on her review of psychological research, she says that introverts can consciously organize their lives to operate at “optimal levels of arousal.”

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June 18, 2022 in Legal Ed Scholarship, Legal Education, Tax | Permalink

Katherine Magbanua To Be Sentenced in Dan Markel's Murder On July 29—Same Time, Day, And Courtroom As Charlie Adelson's Hearing; Will She Cut A Deal And Implicate Adelsons?

WCTV, Magbanua To Be Sentenced July 29 In Dan Markel Murder:

Magbanua AdelsonKatherine Magbanua is now set to be sentenced on July 29 for the murder of Florida State University law professor Dan Markel. ... Magbanua faces a life sentence on the first-degree murder conviction and up to 30 years in prison on the other charges. The state did not seek the death penalty against her.

Court records show the sentencing hearing is set at the same time, day and courtroom as a case management hearing for newly arrested co-defendant Charlie Adelson.

WTXL, Sentencing Date for Katherine Magbanua Set

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June 18, 2022 in Legal Ed News, Legal Education | Permalink

17th Annual Junior Tax Scholars Workshop Concludes Today At Illinois

Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Crisis Lawmaking, Automatic Stabilizers, and Democracy
Commentators: Blaine Saito (Northeastern; Google Scholar), Christine Speidel (Villanova; Google Scholar)

Andrew Appleby (Stetson; Google Scholar), Digital Property Taxation
Commentators: Hayes Holderness (Richmond), Shelly Layser (Illinois; Google Scholar; moving to San Diego)

Amanda Parsons (Colorado), The Economic Allegiance of Capital Gains
Commentators: Jonathan Choi (Minnesota; Google Scholar), Eleanor Wilking (Cornell)

Jeesoo Nam (USC; Google Scholar), Just Taxation of Crime: Should the Commission of Crime Change One’s Tax Liability?
Commentators: Blaine Saito, Gaga Gondwe (NYU, moving to Wisconsin)

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June 18, 2022 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Friday, June 17, 2022

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Galler's Tax Opinion Policies And Procedures

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Linda Galler (Hofstra), Tax Opinion Policies and Procedures, 75 Tax Law. 443 (2022).

Sloan-speckIn Tax Opinion Policies and Procedures, Linda Galler analyzes and discusses the results of a 2021 survey of tax professionals’ approaches to opinion practice. In this fourteen-question survey, the American College of Tax Counsel (ACTC) asked its limited membership of lawyers and accountants about their firms’ procedures for reviewing and issuing opinions. Although the ACTC survey’s results are more impressionistic than comprehensive, Galler notes that the survey “provides an excellent starting point” for establishing the current landscape of tax opinion practice (473). After detailing the form and function of tax opinions, as well as ethical considerations in opinion practice, Galler highlights the ACTC survey’s critical results and offers various recommendations for firms and future study.

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June 17, 2022 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

17th Annual Junior Tax Scholars Workshop Kicks Off Today At Illinois

Illinois college of lawGaga Gondwe (NYU, moving to Wisconsin), The Black Tax: How the Charitable Contribution Subsidy Reinforces Black Poverty, 76 Tax L. Rev. ___ (2023)
Commentators: Jeesoo Nam (USC; Google Scholar), Goldburn Maynard (Indiana-Kelley; Google Scholar)

Hayes Holderness (Richmond), Individual Home-Work Assignments for State Taxes
Commentators: Andrew Appleby (Stetson; Google Scholar), Shelly Layser (Illinois; Google Scholar; moving to San Diego)

Shelly Layser, Fighting the Affordable Housing Crisis Through State-Federal Tax (Dis)Conformity
Commentators: Andrew Appleby, Hayes Holderness

Blaine Saito (Northeastern; Google Scholar), Public Tax Actors
Commentators: Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Jeesoo Nam

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June 17, 2022 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Federal District Court Allows Linda Mullenix's Gender Discrimination Equal Pay Claim To Proceed Against The University Of Texas Law School

Litigation Bias

Adam Eckart (Suffolk), Litigation Bias, 101 Or. L. Rev. __ (2022):

Oregon Law ReviewThere is pervasive litigation bias in law schools. Despite significant interest in transactional law fields among law students, law schools disproportionately teach to the student interested in litigation: litigation-based legal writing assignments outnumber transactional-based ones 19 to 1; litigation-based clinics outnumber transactional ones 9 to 1; and doctrinal classes focus primarily on appellate court cases, often failing to entertain substantive discussion on the creation or content of the documents that led to the dispute. As a result, law school graduates are 44% less prepared for transactional careers than litigation careers.

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June 17, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Thursday, June 16, 2022

Mason: Does The Prohibition Of State Aid Limit Tax Competition?

Ruth Mason (Virginia; Google Scholar), Does the Prohibition of State Aid Limit Tax Competition?:

At the inception of a new and potentially transformative type of tax enforcement, this Article reviews the goals underlying the prohibition on state aid and whether they properly encompass limitations on tax competition. To explore this question, this Article examines treaty text and structure, doctrine, and policy arguments for and against using state aid to curb tax competition. It concludes that the Commission’s expansion of state-aid doctrine to limit tax competition improperly constrains Member State tax autonomy, arrogates tax policy power to the unelected Commission, and increases legal uncertainty. This Article urges the Court of Justice to clarify that preventing tax competition is not an independent goal of state-aid enforcement, although limits on tax competition may arise instrumentally via a free-trade interpretation of the prohibition of state aid. Unlike the anti-tax-competition interpretation, the free-trade interpretation of the prohibition of state aid is well grounded in history, text, and regulatory guidance.

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June 16, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

A Supreme Dilemma: Admissions v. Representation In Law School And Legal Profession

Ahmuan Williams (Oklahoma), A Supreme Dilemma: Admissions v. Representation in Law School and Legal Profession:

Diversity in the legal profession does not have to be a myth, but we have to put in the effort to do it. A Supreme Dilemma: Admissions v. Representation in Law School and Legal Profession gives you an idea of the challenges and history of being a minority in the legal profession created exclusively for white men. This paper examines affirmative action and its need to diversify the legal profession. It starts by examining the controversies in diversity and the legal profession. Then it acknowledges the positive impacts of diversity initiatives in the legal profession. It concludes by recommending that we adopt long-term diversity initiatives through our state constitutions, amendments, and education.

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June 16, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Zelinsky: The Case For Letting States Experiment With Private Sector Retirement Savings Plans

Edward A. Zelinsky (Cardozo), How Should Congress Respond to Jarvis? The Case for Letting States Experiment With Private Sector Retirement Savings Plans:

The U.S. Supreme Court has ended the saga of Howard Jarvis Taxpayers Association v. California Secure Choice Retirement Savings Program by declining to review the decision of the U.S. Court of Appeals for the Ninth Circuit. By refusing to review this circuit court decision, the Supreme Court left intact that decision and its holding that ERISA does not block the CalSavers IRA program.

In the wake of these events, some urge the federal government to move into the space occupied by CalSavers and other state programs encouraging less affluent Americans to save for retirement. I instead propose that, the post-Jarvis world, Congress should eschew any mandate that private employers adopt IRAs or other retirement programs for their employees. The states should continue to experiment in this area rather than the federal government imposing a single national pattern. Different states will pursue different courses, thereby testing alternative possibilities. Experimentation by the states will provide information about diverse approaches.

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June 16, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

HBCU Law Schools Face Severe Underfunding, HBCU Law Schools Face Severe Underfunding: 'Do We Have a Belt' Left to Tighten?:

HBCU (2019)There are six Historically Black Colleges and Universities law schools in the U.S., established because Black students were denied access to law school, and each is struggling due to underfunding.

The six HBCU law schools and deans are as follows: Florida A&M University College of Law with dean Deidre Keller; Howard University School of Law with dean Danielle Holley-Walker; North Carolina Central University School of Law, where dean Browne C. Lewis recently died; Southern University Law Center with John Pierre as chancellor; Texas Southern University Thurgood Marshall School of Law with dean Joan R.M. Bullock; and the University at the District of Columbia David A. Clarke School of Law with dean Renee McDonald Hutchins. ...

The six HBCU law schools are responsible for approximately 25% of the law degrees earned by Black students, while the six accredited law schools make up just 3% of the nation’s law schools, Pierre wrote in an article published in The National Jurist in April [The Value of HBCU Law Schools]. ...

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June 16, 2022 in Legal Ed News, Legal Education | Permalink

Piketty Calls For 'Participatory Socialism': $150,000/Person Universal Inheritance, 'Confiscatory' Income And Wealth Taxes

New York Times, Thomas Piketty's Case For 'Participatory Socialism':

Brief History of InequalityThe French economist Thomas Piketty is arguably the world’s greatest chronicler of economic inequality. For decades now, he has collected huge data sets documenting the share of income and wealth that has flowed to the top 1 percent. And the culmination of much of that work, his 2013 book Capital in the Twenty-First Century, quickly became one of the most widely read and cited economic texts in recent history.

Piketty’s new book, A Brief History of Equality, is perhaps his most optimistic work. In it, he chronicles the immense social progress that the U.S. and Europe have achieved over the past few centuries in the form of rising educational attainment, life expectancy and incomes. Of course, those societies still contain huge inequalities of wealth. But in Piketty’s view, this outcome isn’t an inevitability; it’s the product of policy choices that we collectively make — and could choose to make differently. And to that end, Piketty proposes a truly radical policy agenda — a universal minimum inheritance of around $150,000 per person, worker control over the boards of corporations and “confiscatory” levels of wealth and income taxation — that he calls “participatory socialism.”

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June 16, 2022 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

The ABA Proposes Eliminating Standardized Tests For Law School Admissions

Following up on my previous post, ABA Council Votes 20-1 To Advance Proposal Permitting Law Schools To Go Test Optional. What Are The Implications Of Admitting Students Who Don't Take The LSAT Or GRE?:  Inside Higher Ed, The ABA Proposes Eliminating Standardized Tests For Law School Admissions:

ABA Legal Ed (2021)The leading law school accreditor has proposed eliminating the standardized test requirement for admissions. Proponents argue it would increase diversity, but detractors fear a loss of accountability.

In April, the American Bar Association’s Council on Legal Education, which accredits 196 law schools across the U.S., proposed eliminating a requirement that accredited schools use the Law School Admission Test or some equivalent “valid and reliable” standardized test in their admissions process. The ABA council clarified that law schools “would remain free to require a test if they wish.”

If accepted, the proposal would take effect for law school classes beginning in fall 2023.

The LSAT is by far the most widely used assessment for law school admissions, and any aspiring lawyer can attest to the weight a good LSAT score can have on a school’s decision. But as consensus builds for a re-evaluation of the role of standardized testing in other areas of higher education, the debate over its benefits has reached law school admissions. Opinion is sharply divided—and impassioned on both sides.

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June 16, 2022 in Legal Ed News, Legal Education | Permalink