Paul L. Caron
Dean




Friday, May 20, 2022

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews AI, Taxation, And Valuation By Soled And Thomasm>Tax, Incorporated:

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Jay Soled (Rutgers; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), AI, Taxation, and Valuation, 108 Iowa L. Rev. __ (2023).

Mirit-Cohen (2018)

Artificial intelligence (AI) is improving our lives by utilizing technology and machine learning to accomplish tasks that require considerable human labor. It can deliver similar and often better outcomes in a cost-effective manner. I have written here that calculative actions do not require much creativity thus are the most obvious fields in which machines are superior to humans. It is very fitting to ask, then, how can AI improve tax enforcement and compliance? Valuation is one of the most calculative and arduous areas in tax administration that automation can greatly improve. 

Valuation often requires many efforts determining fair market value (FMV) when there is no willing buyer and seller that negotiate the asset’s purchase price. Because of the essential role that asset valuations play in determining tax liabilities, there is a high sensitivity by the IRS and taxpayers to their accuracy. Transactions between related parties or not at arm’s length such as transfer of bequests, nonfungible real estate, or closely held business interests present complex valuation issues as there is no clear FMV. Congress uses a traditional carrot-and-stick approach to valuation by encouraging taxpayers to comply through clarifying and simplifying reporting obligations, along with imposing penalties for misstating the value of assets.

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May 20, 2022 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup | Permalink

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

Private College Tuition Discount Rate Hits All-Time High Of 54.5%

NACUBO, Tuition Discount Rates at Private Colleges and Universities Hit All-Time Highs:

In the 2021 NACUBO Tuition Discounting Study, 359 private, nonprofit colleges and universities reported an estimated 54.5 percent average institutional tuition discount rate for first-time, full-time, first-year students in 2020-21 and 49 percent for all undergraduates—both record highs. By providing grants, fellowships, and scholarships, these institutions forgo about half the revenue they otherwise would collect if they charged all students the tuition and fee sticker price.

NACUBO

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

Tax Now Or Tax Never: Political Optionality And The Case For Current-Assessment Tax Reform

David Gamage (Indiana-Maurer; Google Scholar) & John R. Brooks (Georgetown; moving to Fordham; Google Scholar), Tax Now or Tax Never: Political Optionality and the Case for Current-Assessment Tax Reform, 100 N.C. L. Rev. 487 (2022):

The U.S. income tax system is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is magnified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful. 

The conventional view among tax law experts has assumed that the problems created by the realization doctrine can be fixed on the back end by adjusting the rules that govern taxation at the time of realization. Specifically, most tax scholars have favored reform proposals that would retain the realization doctrine while aiming to impose taxes in a way that would erase or reduce the financial benefits of deferral. Examples include retrospective capital gains tax reforms, progressive consumption tax reforms, and more incremental reforms such as ending stepped-up basis. 

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May 20, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Wendi Adelson And Luis Rivera Take The Stand In The Retrial Of Katherine Magbanua In Dan Markel's Murder

Thursday, May 19, 2022

Raskolnikov Presents Should Only The Richest Pay More? Today At The OMG Transatlantic Tax Talks

Alex Raskolnikov (Columbia) presents Should Only the Richest Pay More? today as part of the OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

Alex_raskolnikov_0This paper challenges the leading academic, political, and cultural narrative supporting greater redistribution. This narrative holds that redistribution should come at the expense of the very restricted group of the highest earners: the one percent, the super-rich, the billionaire class. I argue that the very reasons offered in support of this view call for redistribution from a much broader group that includes the affluent—those with incomes in the ninetieth to ninety ninth percentiles of the distribution. Whether one looks at the recent trends in income concentration, wealth concentration, economic mobility, government capture, political polarization, or the rise of populism, the affluent are as great or greater contributors to these problems as those in the top one percent. Remarkably, the contemporary U.S. legal and economic scholarship has ignored the affluent almost completely, greatly limiting the magnitude of possible economic transfers as well the form that these transfers may take.

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May 19, 2022 in Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Stanford Law School Joins Yale In Going Tuition-Free For Students In Need

Reuters, Stanford Law Scraps All Tuition for Low-Income Students, Joining Yale:

Stanford Law (2022)Stanford Law School this week became the second elite U.S. law school to commit to fully eliminating tuition payments for low-income students.

In an email Wednesday to students, Dean Jenny Martinez announced a series of new financial aid measures, including full-tuition scholarships for current and incoming students whose family income is below 150% of the poverty line. That works out to $41,625 for a family of four, or $20,385 for an individual.

The school will cover tuition payments for those who qualify starting next year. Annual tuition at Stanford Law is currently $64,350.

Yale Law School announced a similar program in February, with full-tuition scholarships for students with family incomes below the poverty line and whose assets are below $150,000.

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

Texas Tax Faculty Workshop

Texas TechTax faculty from all Texas Law Schools were invited to gather yesterday for an informal workshop at Texas A&M. As is our tradition, lunch doubled as a half-baked idea brainstorming session for all participants to share ideas and seek input on projects in very early stages. Below the fold is the list of who presented works in progress and who were the official commentators.

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May 19, 2022 in Bryan Camp, Tax Conferences, Tax Scholarship, Tax Workshops | Permalink

Are More Law Schools Needed In Areas Where InfiLaw Campuses Closed?

ABA Journal, Are More Law Schools Needed in Areas Where InfiLaw Campuses Closed?:

As the Florida Coastal School of Law prepares to close, Jacksonville University announced plans to open a new law school in the same city, with the first entering class starting in fall 2022.

The for-profit Florida Coastal had various accreditation problems, including a U.S. Department of Education flag for not meeting the gainful-employment standard. Administration at Jacksonville University, a not-for-profit school, claims the city of approximately 902,000 people needs a law school. ...

Plans are also in place for a new law school at North Carolina’s High Point University, which is about 78 miles from the now-shuttered Charlotte School of Law. Both Florida Coastal and CSL, as well as Arizona Summit Law School, another school that closed following accreditation issues, were operated by InfiLaw, which was owned by the private equity firm Sterling Capital Partners.

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

Who Gives A Trump? Evidence Of Framing Effects In Tax Policy

Mark McKnight (Southern Indiana; Google Scholar), Curtis Price (Southern Indiana; Google Scholar), Andrew Dill (Southern Indiana), Timothy Bryan (Marshall; Google Scholar) & Brett Bueltel (Southern Indiana; Google Scholar), Who Gives a Trump? Evidence of Framing Effects in Tax Policy, 23 J. Acct., Ethics & Pub. Pol'y 149 (2022):

We use a framed survey to measure how associating the name “Trump” with the Tax Cuts and Jobs Act (TCJA) affects people’s satisfaction of said Act. Our research included 72 participant clients from a Volunteer Income Tax Assistants (VITA) program, who were asked to provide baseline data regarding political affiliation and attitudes prior to having tax returns completed. We find that using the name “Trump” with people who self-identify as Republican results in more satisfaction with the Act, whereas, for people with who do not self-identify as Republican, association with the name “Trump” does not precipitate stronger or weaker satisfaction with the Act.

Trump

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May 19, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Day 3 Of The Retrial Of Katherine Magbanua In Dan Markel's Murder: Conflicting Portraits Emerge

Tallahassee Democrat, Dan Markel Murder 'Middleman'? Conflicting Portraits of Katherine Magbanua Emerge in Trial Opener:

Magnauba (2021)As Katherine Magbanua sat by her defense lawyers in a Leon County courtroom, prosecutors pointed to her as the person who set up the murder of Florida State University law professor Dan Markel nearly eight years ago, later delivering $100,000 to the two hired killers who carried out the hit in the garage of his Betton Hills home.

“The evidence in this case will prove to you the defendant was the link or the middleman between the people who wanted this murder done and the person who pulled the trigger,” said Assistant State Attorney Sarah Kathryn Dugan.

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

Wednesday, May 18, 2022

Innovations In IPO Deal Structure: Do Up-C IPOs Harm Public Shareholders?

Mary Brooke Billings (NYU), Kevin Hsueh (NYU), Melissa F. Lewis-Western (BYU; Google Scholar) & Gladriel Shobe (BYU; Google Scholar), Innovations in IPO Deal Structure: Do Up-C IPOs Harm Public Shareholders? (additional write-up here):

This paper examines an innovation in capital formation that has spurred contentious debate: the Umbrella Partnership Corporation (“Up-C”) IPO. Advisors and underwriters argue that the Up-C deal structure is a driver of post-IPO value and, thus, is a value-enhancing means of raising capital that may be one solution to concerns regarding the drop in the number of publicly traded companies. Consistent with these claims, recent research suggests that organizing soon-to-be public businesses as pass-through entities (as is the case for UpCs) leads to superior future performance. Yet, broadening the analysis to consider abnormal stock performance and post-IPO litigation of a larger and more recent sample of exclusively Up-C IPOs, we conclude just the opposite. While the Up-C deal structure increases IPO valuations and predicts positive post-IPO operating performance, the return performance of Up-C IPOs indicates that Up-C deals harm public shareholders.

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May 18, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Pepperdine Caruso Law Bibles For The Class Of 2022

One of my favorite things to do as dean: signing the Pepperdine-branded Bibles we will be giving to our graduates at tomorrow night's Baccalaureate Service for the Class of 2022 and their families. I write in each Bible the graduate's name and the five Bible verses I will be talking about in my message that have shaped my life (and that I hope will shape theirs).

Bible

May 18, 2022 in Legal Ed News, Legal Education, Pepperdine Legal Ed | Permalink

Soled & Morris: The Strange And Curious Tax Treatment Of Investment Expenses

Jay A. Soled (Rutgers; Google Scholar) & Mallory A. Morris (Dechert), The Strange And Curious Tax Treatment Of Investment Expenses, 67 Vill. L. Rev. 101 (2022):

To secure income, taxpayers often incur a wide range of expenses. At least theoretically, one might think that the Internal Revenue Code (“Code”) would accord all such expenses similar tax treatment, but (i) trade or business expenses and (ii) investment expenses endure the exact opposite tax treatment: the former are generally allowed, whereas the latter are commonly disallowed. The obvious question is why there is a difference in treatment between the two.

This Article explores possible answers to that important question. It first traces the evolution of the Code’s dichotomous tax treatment of trade or business versus investment expenses. It then investigates possible justifications and their associated merits for the different handling of these two expense categories. 

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May 18, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Leading Courageously With Data To Diversify The Legal Profession

Evan Parker (Founder, Parker Analytics), Leading Courageously With Data:

BASF

The graphic above tracks demographic representation across 12 law firms working for BASF Corporation, 2016 to 2021. On average, shares of BASF work grew +11% for diverse ethnicity partners and +46% for associates. For women, shares grew +24% for partners and +28% for associates. Additionally (not pictured), ethnicity and gender representation in firmwide leadership grew +10%.

What explains this blockbuster growth? To me, it’s the courageous leaders using data to achieve a shared mission.

Each year, BASF’s in-house leaders request diversity data from outside counsel. Parker Analytics (PA) then prepares individualized data scorecards and action items, which BASF shares with its firms. As the graphic clarifies, firm leaders responded, driving growth in diverse representation in BASF legal teams and the firm overall.

The most successful data projects I know include a shared mission—between clients and firms, firm leaders and analysts, etc. Achieving mission goals together enriches these professional relationships. So, in leading courageously with data you are powering a virtuous cycle.

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

Using The Internal Revenue Code To Limit Coaching Salaries: A Proposal To Bring Amateurism Back Into College Football

Blaire Mikesell (J.D. 2022, Indiana-Maurer), Note, Using the Internal Revenue Code to Limit Coaching Salaries: A Proposal to Bring Amateurism Back into College Football, 97 Ind. L.J. 393 (2022):

Since formal collegiate athletic competitions began in 1852, they have gained popularity and become a mainstay in American culture. This rise in popularity coupled with increased media coverage allowed college athletics, and particularly college football, to grow into a successful business that generates billions of dollars in revenue each year. Colleges and institutions earn this athletic revenue as tax-free income due to their tax-exempt status under the Internal Revenue Code § 501(c)(3) tax-exemption statute. The basic policy underlying this statute is as follows: colleges and universities provide an important benefit to the public by providing education, and in exchange for that provided benefit, the IRS does not tax educationally related income. Currently, income generated by college athletics is educationally related and thus is earned under the tax-exempt status of the university.

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May 18, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Day 2 Of The Retrial Of Katherine Magbanua In Dan Markel's Murder: Jury Selected, Ex-Wife Wendi Adelson And Hitman Sigfredo Garcia To Testify

Magnauba (2021)Tallahassee Democrat, Dan Markel Murder: Jury Seated in Katherine Magbanua Murder Trial:

A 14-person jury has been selected to serve in the murder trial of Katherine Magbanua, who is charged with first-degree murder in the killing of FSU law professor Dan Markel. Seven women and seven men comprise the jury.

WTXL, Jury Selected in Magbanua's Retrial:

One witness the jury will hear from is Wendi Adelson.

That's Dan Markel's ex wife.

Adelson will testify with immunity as a state witness as early as Thursday.

Florida Politics, Markel Trial Day 2: Jury Seated, Witness List Clarified, Internet Chatter Ramps Up:

The Markel murder has been a hot topic for eight years in online circles, with engagement ramping up on Twitter with various hashtags, including #danmarkel and #justicefordanmarkel, and on WebSleuths, Facebook, and increasingly, on Reddit.

WCTV, Wendi Adelson’s Attorney Asks Judge to Quash Defense Subpoena:

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

Tuesday, May 17, 2022

A Half-Century With The Internal Revenue Code: The Memoirs Of Stanley Surrey

A Half-Century with the Internal Revenue Code: The Memoirs of Stanley S. Surrey (Lawrence Zelenak (Duke) & Ajay Mehrotra (Northwestern; Google Scholar) eds. Carolina Academic Press 2022):

SurreyStanley S. Surrey was the most prominent mid-twentieth-century American tax law academic, and the federal government official with the greatest influence on tax policy over that same period (aside from politicians). His professional life with the federal tax system spanned half a century, ending only with his death at the age of 73 in 1984. As Surrey writes in his memoirs, he had good reason to "doubt that any person alive today has had as close and as varied a relationship with the Internal Revenue Code as I have had."

He divided the five decades of his professional life between academia (three early years at the University of California, Berkeley, followed by many years at Harvard Law School), and two lengthy tours of duty in the service of the U.S. Treasury Department. In his second Treasury stint he served as the Assistant Secretary of the Treasury for Tax Policy, the highest executive branch position exclusively focused on taxation. Surrey's influence on the federal tax system was deep and pervasive and continues to this day; perhaps his most enduring accomplishment has been his development of tax expenditure analysis, which since the 1970s has played a central role in a wide range of tax policy discussions.

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May 17, 2022 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

After Roe Leak, Yale Law Students Call For Ostracizing Conservative Classmates

Aaron Sibarium (Washington Free Beacon), ‘Unrelenting Daily Confrontation’: After Roe Leak, Yale Law Students Call for Ostracizing Conservative Classmates and Tossing Out Constitution:

It’s been a rough couple of weeks for students at Yale Law School, who are responding to news that the Supreme Court may overturn Roe v. Wade with calls to accost their conservative classmates through "unrelenting daily confrontation" and toss the Constitution by the wayside.

Members of the law school’s conservative Federalist Society, first year law student Shyamala Ramakrishna said in an Instagram post, are "conspirators in the Christo-fascist political takeover we all seem to be posting frantically about." Why, she asked, are they still "coming to our parties" and "laughing in the library" without "unrelenting daily confrontation?"

Orin

Simple Justice, Short Take: Have Yale Law Students Suffered Enough?:

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May 17, 2022 in Legal Ed News, Legal Education | Permalink

Socialism, Progressive Taxation, And The Fiscal State

Sol Picciotto (ICTD, Lancaster, London; Google Scholar), Socialism, Progressive Taxation, and the Fiscal State:

This paper traces the philosophical, political, sociological and economic underpinning for the advocacy by socialists of progressive taxation, from the Communist Manifesto to recent supporters of tax justice campaigns. Socialists’ attitudes to taxation have been tied to their primary aim of socialisation of the ownership of the means of production, reflecting the view that inequality and exploitation are inherent in capitalism, which rests on private property enforced by state power. Communism, as developed particularly by Marx and Engels, aimed to transcend capitalism and end the separation of the state from civil society, by the socialisation of property, including through progressive taxation. Marx’s view in Capital volume 3 that the emergence of large scale enterprises already entailed the ‘abolition of capital as private property within the framework of capitalist production itself’, when it was published in 1894 became central to the debates among German socialists (Liebknecht, Kautsky, Bernstein and Luxemburg), and the Austro-Marxists (Renner, Hilferding), but socialists split when graduated direct taxes were introduced to help fund the welfare-warfare state. Goldscheid’s outline for a social science of the state centred on fiscality underpinned his radical and influential wartime proposals to finance the socialisation of large corporations through taxes on capital.

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May 17, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

McGinnis: Lawyers For Radical Change

John O. McGinnis (Northwestern), Lawyers for Radical Change:

City JournalThe transformation of the legal profession marks a fundamental change in American democracy. In the republic’s early days, lawyers provided ballast for stability and served as an anchor against excessive populism. The judiciary’s sober attachment to formal order was a primary reason for giving it the power to review the constitutionality of legislation. Law was the profession most likely to preserve the enduring framework of republican government against the mutable passions of the hour.

Nowadays, lawyers are a force for often-radical progressive change. Nothing symbolizes that shift better than the American Bar Association. Once an embodiment of conservatism, it has been captured by the Left. Its resolutions at its annual meeting constitute a wish list of Democratic Party proposals. It also deploys its influence in the accreditation process of law schools to make them even more monolithically left-wing than they already are.

The reasons for the shift lie, at least in part, in the reorientation of lawyers’ interests. Since the birth of the modern regulatory state, lawyers are no longer primarily the allies of commercial classes, as they were in the early republic, but instead the technocrats and enablers of regulation and redistribution. The more the nation intervenes in economic affairs to regulate and redistribute, the greater slice of compliance costs and transfer payments lawyers can expect to receive. Thus, they cannot be counted on as supporters of property rights or even of a stable rule of law. Their interest lies frequently in dynamic forms of legal transformation and the uncertainty they bring. Far from supporting a sound, established social order, they are likely to seek to undermine it. Only an ideological attachment to older forms of legal orders, like that which Federalist Society members manifest, can call lawyers back to the essential role they play in the civic life of our republic. ...

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May 17, 2022 in Legal Ed News, Legal Education | Permalink

Colella: Crispino Upholds IRS Mailbox Rule Reg

Frank G. Colella (Pace), ‘But I Mailed It’ — Crispino Upholds IRS Mailbox Rule Regulation, 173 Tax Notes Fed. 1479 (Dec. 13, 2021):

Tax Notes Federal (2020)In Crispino, the U.S. District Court for the District of New Jersey held that taxpayers cannot introduce extrinsic evidence under the common law mailbox rule to establish timely filing of their claim for refund and, accordingly, dismissed the refund action for lack of jurisdiction. Crispino, a decision appealable to the Third Circuit, upheld the IRS’s position that the only means to satisfy section 7502, the statutory “mailbox rule,” is by proper compliance with reg. section 301.7502- 1(e)(2), which requires proof of certified or registered mailing when the IRS alleges that it has not received a document.

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May 17, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Day 1 Of The Retrial Of Katherine Magbanua In Dan Markel's Murder: Jury Selection

Tallahassee Democrat, 'Conspiracy to Murder': Jury Selection Goes Behind Closed Doors in Katherine Magbanua Retrial:

The second trial of Katherine Magbanua — the alleged conduit between the hired gunmen who killed Dan Markel and his in-laws who allegedly hired them — began Monday with jury selection.

Magbanua, whose first trial in 2019 ended with a hung jury, is on trial on charges of first-degree murder, conspiracy to commit first-degree murder and solicitation of first-degree murder.

The court set aside two days to select a 12-person jury and four alternates. Because the case has gotten so much publicity, lawyers questioned potential jurors individually and behind closed doors at the Leon County Courthouse.

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May 17, 2022 in Legal Ed News, Legal Education | Permalink

Monday, May 16, 2022

Lipman: How To Design An Antiracist State And Local Tax System

Francine Lipman (UNLV; Google Scholar), How to Design An Antiracist State and Local Tax System, 53 Seton Hall L. Rev. ___ (2022):

Since the first ship of enslaved African people landed in Virginia in 1619, racist policies in institutions, systems, structures, practices, and laws have ensured inequity for people of color. These racist policies include every imaginable variant of injustice from slavery to lynching, to segregation, and to economic injustices, including those delivered through tax systems today. Although facially color-blind, tax systems have long empowered the explosion of white wealth and undermined wealth accumulation for Black families and communities of color. State and local tax systems, especially in the South, have deeply-rooted racist fiscal policies, including Jim Crow laws that continue to sustain and bolster racial inequality today. These injustices have become even more obvious during the global pandemic.

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

Legal Ed News Roundup

Two Tax Court Paid Internship Programs: Diversity, Case Processing

The U.S. Tax Court offers two paid internship programs:  

ABA Tax Section (2021)Diversity in Government Internship Program
The DiG Tax program is separate from the Court’s legal internship program, and you need not be a law student to apply.  DiG Tax interns may assist on projects with departments throughout the Court, including Case Services, Facilities, Finance, Human Resources, Library, Information Technology, and Public Affairs.  For more information, see here.

Case Processing Legal Student Intern

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May 16, 2022 in ABA Tax Section, Legal Education, Tax | Permalink

Retrial Of Katherine Magbanua In Dan Markel's Murder Begins Today: 'Prosecutorial Desperation' Or 'Nefarious Nexus'?

Tallahassee Democrat, 'Prosecutorial Desperation' or a Nefarious Nexus: Two Takes on Katherine Magbanua's Retrial:

Magnauba (2021)For six years prosecutors have alleged that Katherine Magbanua was the link between Dan Markel’s estranged in-laws and the two killers who brutally murdered him in his Betton Hills garage.

They’ve said she helped hire the father of her two kids, convicted gunman Sigfredo Garcia and his childhood friend Luis Rivera, coordinated payment of $100,000 for the hit and helped further a conspiracy that has spiraled into one of Tallahassee’s most notorious murder cases.

On the eve of Magbanua’s second trial on May 16, her attorneys say she is the unwitting suspect in a spat between the man who shot Markel and the Florida State law professor’s former brother-in-law, Charlie Adelson.

Magbanua narrowly escaped being convicted in Dan Markel’s murder by a hung jury deadlocked in a 10-2 vote in favor of guilty, two sources with knowledge of the vote confirmed weeks after the trial.

For the do-over, a dozen jurors will be selected starting on Monday with trial expected to commence Thursday and end by May 27. Court administration issued 500 jury summonses and expects roughly 200 potential jurors to report.

The first person Garcia called when his phone was picked up on cellular towers in the Lake City area after the July 18, 2014 shooting was Magbanua. Throughout the day, Magabanua was in contact with him and Adelson, according to evidence presented at Magbanua's 2019 trial.

Police found between Markel’s killing in July 2014 and Nov. 2015, Magbanua deposited more than $56,000 in cash into her bank account. The deposits, according to arrest records, were made mostly through ATMs in increments of $300 to $2,000.

But her defense team has never waivered in their contention their client is innocent and have labeled their client's arrest as "prosecutorial desperation," to make other arrests in the case.

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

Lesson From The Tax Court: Only One Exclusion For Military Retiree Disability Payments

Camp (2021)My dad served as a doctor in the military for 30 years, 23 days. Starting this week, he will have been retired for longer than he served. When he first retired, he received a monthly pension check from the Defense Finance and Accounting Service (DFAS) and that was all.  A few years later he learned that his hearing loss, likely from his time in Vietnam, qualified him for disability payments from the Department of Veterans Affairs (VA).  He applied for, and received, a 30% disability rating.  He then started receiving two checks each month, one from DFAS and one from the VA.

My dad’s DFAS check is included in gross income but his VA check is not, thanks to §104(a)(4).  If he had never applied for the disability rating, however, §104 would still permit him to exclude part of his DFAS check to the extent he would have be entitled to a disability check from the VA.  Confused?  Today’s lesson will help! 

In Tracy Renee Valentine v. Commissioner, T.C. Memo. 2022-42 (Apr. 28, 2022) (Judge Gustafson), the taxpayer was a veteran and received two checks per month, one from DFAS and one from VA for disability compensation.  She wanted to exclude not only the VA disability check, but she also wanted to exclude part of her DFAS check.  But she mis-read §104(a)(4)’s interplay with §104(b).  Judge Gustafson teaches us the proper way to read the rules.  Basically, veterans get only one exclusion for their disability payments.  Details below the fold.

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May 16, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

The Cost Of Academe’s Fixation On Productivity

Chronicle of Higher Education Op-Ed:  What Is the Real Cost of Academe’s Fixation on Productivity?, by Maria LaMonaca Wisdom (Duke):

A few months ago, I took part in a virtual conversation at my university about how to rebuild campus relationships fragmented by Covid. Faculty members and administrators asked the same sorts of late-pandemic questions vexing colleges across the country: What could we do to mitigate the isolation and disengagement that everyone — students, professors, staff members — seemed to be feeling? And how could we begin to rebuild the academic and intellectual fellowship lost since the pandemic?

In my role as a faculty coach at Duke University, I jumped in with some ideas, based on what I was seeing and hearing from academics during our coaching conversations. My recommendations — that small, incremental changes at the personal and local level could be more effective than top-down solutions — ended up as an advice post on our faculty-advancement website. ...

But the more I thought about it, the more I felt like I was proposing a dam to hold back a tsunami — one that started well before Covid and has been eroding social relationships for years both in higher education and in many other sectors of American life. Long before the pandemic, academics were finding it difficult to foster “intellectual community.” To attribute all of the problems we now face to the pandemic risks covering up a much larger, long-term issue. ...

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

TaxProf Blog Weekend Roundup

Sunday, May 15, 2022

WSJ Book Review: America's Book — The Rise and Decline Of A Bible Civilization

Wall Street Journal Book Review:  ‘America’s Book’ Review: The Word Out of Season, by D.G. Hart (Hillsdale College) (Reviewing Mark A. Noll (Notre Dame), America's Book: The Rise and Decline of a Bible Civilization, 1794-1911 (2022)):

America's BookMany Americans born after 1960 have trouble imagining that for much of the country’s history the Bible was a chief source of national identity. ... Whether ceremonial or therapeutic, Bible-reading in public schools was, by the 1950s, among the last uncontested conventions of America’s Bible civilization.

Mark Noll’s Mark A. Noll (Notre Dame), America's Book: The Rise and Decline of a Bible Civilization, 1794-1911 explains how the Bible achieved this status. The new nation’s rejection of European forms of Christendom such as sacral monarchy and state churches left the Bible to bear the burden of America’s attempt to create a Christian civilization. A completely secular republic was never a possibility except for the most free-thinking of free thinkers. The Founders virtually to a man insisted that a republic depended on a virtuous citizenry, and that the best source of morality was religion. Despite the variety of Protestant denominations, church leaders and public officials agreed that the Bible was the best and most reliable guide for determining moral consensus.

“America’s Book” documents the extent of the Bible’s reach—from the printing and distribution of Bibles and the creation of Sunday schools to the intellectual dead ends into which unwise handlers of the Bible were led. The book’s breadth is a tribute to Mr. Noll’s career as an interpreter of Protestantism in North America, even if its encyclopedic quantity occasionally obscures the overarching argument. ...

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May 15, 2022 in Book Club, Faith, Legal Education | Permalink

NY Times Op-Ed: If Roe Is Overturned, Where Should The Pro-Life Movement Go Next?

New York Times Op-Ed:  If Roe Is Overturned, Where Should the Pro-Life Movement Go Next?, by Tish Harrison Warren (Priest, Anglican Church; Author, Prayer in the Night: For Those Who Work or Watch or Weep (2021) (Christianity Today's 2022 Book of the Year)):

Warren 3Pro-life activists have been working toward overturning the Supreme Court’s Roe v. Wade decision ever since it came down in 1973. But as I spoke to folks from pro-life and whole-life movements last week after the leak of a draft opinion that indicated the court will overturn Roe, the mood was complicated. I did not find unalloyed jubilance or triumph.

Most people I talked to expressed cautious optimism and hope but also concern. This was in part because they worried that the court’s draft opinion may shift in weeks to come. But more so because those who take a holistic approach to reducing abortion feel that legally restricting abortion, while a win for justice and the voiceless and vulnerable, is not alone enough to create a culture that is holistically pro-life and addresses the needs of both women and unborn children.

The sense I got is that, for many pro-life and whole-life leaders, this Supreme Court decision would represent a starting line, not a finish line. There are no credits rolling with a victorious pro-life movement marching into the sunset. One activist told me, “I feel joy and relief, but it is kind of like the joy and relief one feels in getting into college, being cast in the school play or making the varsity team. The conditions for the possibility of achieving the goal have been met, but there’s so much more hard work to do.”

What lies ahead is the continued need to enact policies that address the underlying reasons that some women feel they need abortions in the first place. I asked pro-life or whole-life thinkers and leaders: If Roe is overturned, where should the pro-life and whole-life movements direct energy to support women, unborn children and families?

Here are some of their responses: ...

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May 15, 2022 in Faith, Legal Education | Permalink

NY Times Op-Ed: Too Much Church In The State For This Catholic

New York Times Op-Ed:  Too Much Church in the State, by Maureen Dowd:

As a Catholic whose father lived through the Irish Catholics “need not apply” era, I’m happy to see Catholics do well in the world. There is an astonishing preponderance of Catholics on the Supreme Court — six out of the nine justices, and a seventh, Neil Gorsuch, was raised as a Catholic and went to the same Jesuit boys’ high school in a Maryland suburb that Brett Kavanaugh and my nephews did, Georgetown Prep. ...

[T]his Catholic feels an intense disquiet that Catholic doctrine may be shaping (or misshaping) the freedom and the future of millions of women, and men. There is a corona of religious fervor around the court, a churchly ethos that threatens to turn our whole country upside down.

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May 15, 2022 in Faith, Legal Education | Permalink

The Top Five New Tax Papers

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

  1. SSRN Logo (2018)[940 Downloads]  Amazon and the State Aid Tax Saga, by Leopoldo Parada (Leeds; Google Scholar)
  2. [521 Downloads]  How Treasury and the IRS Have Allowed High-Net-Worth Taxpayers to Exploit Stepped-Up Basis on Intergenerational Wealth Transfers, and How They Can Stop It: Answers to Question for the Record, by Daniel Hemel (Chicago; moving to NYU; Google Scholar)
  3. [385 Downloads]  Taxing Robots, by Rita de la Feria (Leeds; Google Scholar) & Maria Amparo Grau Ruiz (Universidad Complutense de Madrid; Google Scholar)
  4. [350 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)
  5. [346 Downloads]  Permanent Establishment and Fixed Establishment in the Context of the Subsidiary and the Digital Economy, by Stoycho Dulevski (University of National and World Economy; Google Scholar)

May 15, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, May 14, 2022

This Week's Ten Most Popular TaxProf Blog Posts

Law Schools Are Becoming The New Business Schools For Future Leaders

Inc., How Law Schools Are Becoming the New Business Schools for Future Leaders:

Inc.There's a revolution going on right now in top law schools across the country. They're starting to teach leadership — and trust me, it's not an easy task. Some, however, are succeeding beyond their wildest dreams. 

Law students aren't used to learning about how to develop leadership skills, and professors certainly aren't used to teaching it. Getting left-brained, analytic, hyper-competitive law students to genuinely embrace soft and squishy concepts like empathy and teamwork requires a different mindset. In fact, it requires a new way of educating altogether. Century-old Ivy League law schools, chock full of Socratic professors like the fictional and highly cantankerous Professor Kingsfield in the movie Paper Chase, simply won't suffice any longer. A new paradigm is needed. A fundamentally new approach is required. 

But it isn't easy to teach old dogs new tricks. That's why most come up short or avoid the challenge altogether. ...

Fortunately, some law schools aren't shying away from reinventing themselves. A handful of administrators are at the forefront, including Dean Heather Gerken and former assistant dean Anastasia Boyko at Yale Law School, Jennifer Leonard at the University of Pennsylvania, and Scott Westfahl at Harvard Law School.

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May 14, 2022 in Legal Ed News, Legal Education | Permalink

Azam: Online Taxation Post Wayfair

Rifat Azam (Radzyner School of Law, Israel; Google Scholar), Online Taxation Post Wayfair, 51 N.M. L. Rev. 116 (2021):

WayfairThe United States Supreme Court saved the states’ sales tax base in the landmark case of South Dakota v. Wayfair in 2018. This revolutionary decision ended the long ban on states imposing sales tax collection duties on out-of-state retailers without a physical presence in the state, as established in Bellas Hess v. Department of Revenue of Illinois in 1967 and Quill Corp. v. North Dakota in 1992. Wayfair now allows states to impose sales taxation on out-of-state retailers in the era of digitalization. In this article, I provide valuable guidelines and suggestions to aid states on this critical journey toward taxing remote online transactions fairly and efficiently.

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May 14, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

A Year After Abruptly Ousting Tony Varona As Dean, Miami President Names David Yellen New Law School Dean

Miami Herald, UM Hires Cornell Law Grad as its Law School Dean, Following Tumult After Varona Demotion:

Miami Law (2021)About a year after abruptly ousting Anthony Varona as law school dean, University of Miami President Julio Frenk hired his replacement: David Yellen, a New Jersey native who has devoted most of his career to reforming the justice system and leading two other law schools.

Yellen, 64, who earned his bachelor’s in politics from Princeton University and his law degree from Cornell University, will start July 1, according to the Thursday posting from the Coral Gables-based private university.

“I’m very excited,” said Yellen. “The University of Miami School of Law, I’ve known and admired for decades, so I’m really excited to join them.”

Yellen will move to South Florida in June from Colorado, where he has served since last June as the CEO of the Institute for the Advancement of the American Legal System, a research organization at the University of Denver. ...

The turnover of UM’s law school deans began when Frenk announced last May that Varona, an openly gay man of Cuban heritage, would step down as dean. Frenk’s abrupt decision to demote the popular Varona — without prior consultation of the faculty, alumni or students — led to an outcry in the legal community, locally and nationally. ...

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May 14, 2022 in Legal Ed News, Legal Education | Permalink

Friday, May 13, 2022

Weekly Legal Education Roundup

Tax Policy In The Biden Administration

Next Week’s Tax Workshop

Thursday, May 19: Alex Raskolnikov (Columbia) will present Should Only the Richest Pay More? as part of the OMG Transatlantic Tax Talks Series. This event does not require registration. 

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May 13, 2022 in Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Kuehn: The Economic Value Of Law Clinic Legal Assistance

Kuehn (2019)Tax Prof Blog op-ed:  The Economic Value of Law Clinic Legal Assistance by Robert Kuehn (Washington University):

Each year law school clinics provide free legal assistance to tens of thousands of clients, most of whom would otherwise go unrepresented. The work of clinic students and faculty allows clients to advance or defend their rights or obtain assistance or funds to which they are entitled, assistance that is in many ways invaluable to clients and their communities. While the benefits of clinic work can be difficult to monetize, it is possible to estimate the dollar value of the millions of hours of free legal assistance law clinics provide each year to individuals, governmental agencies, and non-profit organizations. As explained below, law clinic students alone provide tens of millions of dollars in pro bono legal services each year.

During academic year 2020-21, 114,520 J.D. students were enrolled in ABA-approved law schools.[i] The ABA ceased collecting data on law clinic course enrollment in 2016. But in the six years prior, schools reported that enrollment each year in their clinics (“seats filled”) was between 85% to 76% of the total number of seats available for enrollment (“seats available”), decreasing in percentage each year from 2011 to 2016.[ii] Because there is no evidence of a noticeable increase in enrollment in experiential courses since 2016,[iii] a reasonable assumption is that of the 32,062 reported seats available in 2020-21, around 24,000 students (75% of 32,062) actually enrolled in one of the school’s clinics (21% of all J.D.s). Only a handful of clinics charge a fee for their services and approximately 10% of the clinics in the 2019-20 Center for the Study of Applied Legal Education (CSALE) survey might assist some for-profit organizations, though even those are generally of limited means.[iv] After excluding those categories of clinic work, it is reasonable to conservatively assume that in 2020-21, approximately 22,000 clinic students provided their free assistance just to individuals, government entities, and non-profits.

The CSALE survey collected information on 950 law school clinics. The median number of credits awarded for just the clinic student’s field or casework (i.e., non-classroom activity) on behalf of clients was 3.5, with each credit representing 42.5 hours of work under the minimum standard set by the ABA. The average clinic student, therefore, worked 149 hours during the term on the casework portion of their law clinic course. Thus, during the 2020-21 academic year, the 22,000 students in law school clinics are estimated to have provided approximately 3,278,000 hours of free legal assistance to individuals, government entities, and non-profits.

The Supreme Court held that in awarding legal fees to prevailing parties, paralegals and law clerks are to be awarded fees at market rates, and courts also award fees for comparable clinic student work at market rates.[v] One national survey of typical billing rates for paralegals found that law firms charge their clients between $100-$200 per hour, with most falling in the median of that range;[vi] another survey found that rates for non-lawyers across states ranged from $99 to $220 per hour.[vii] If law student work is conservatively valued at a market rate of $100 per hour, as cases support,[viii] clinic students are estimated to have provided over $325 million in free legal assistance in 2020-21.

Clinic Students

2020-21 Hours

Value/Hour

Total Value

Market Rate

3,278,000

$100.00

$327,800,000

Wage Rate

3,278,000

$27.03

$88,604,000

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May 13, 2022 in Legal Ed Scholarship, Legal Education | Permalink

Brookings: Rethinking The Corporate Income Tax — The Role Of Rent Sharing

William G. Gale (Brookings Institution; Google Scholar) & Samuel I. Thorpe (Brookings Institution), Rethinking the Incidence of the Corporate Income Tax:

TPCDebates about corporate income tax cuts follow a familiar script. Republicans claim that rank-and-file workers benefit. Democrats argue that affluent shareholders reap the gains.

In a new project [Rethinking the Corporate Income Tax: The Role of Rent Sharing], we find that, workers do benefit, but it is the most affluent employees — managers and executives — who receive the lion’s share of benefits, not rank-and-file staff.

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May 13, 2022 in Tax, Tax Scholarship, Think Tank Reports | Permalink

D.C. Court Of Appeals Increases Bar Exam Seating Capacity By 41% After Outcry From Deans Nationwide

Following up on Wednesday's post, Dispute Over Limited Seating, Preferential Treatment For DC Bar Exam Continues—But Court Isn't Budging:  D.C. Court of Appeals, The DC Court of Appeals Adds 450 Seats to the July 2022 DC Bar Exam:

DC Bar (2020)The DC Court of Appeals has continued to seek additional venues to administer the DC Bar Exam in July, and today we are happy to announce that we have increased our seating capacity to 1550 seats.

The University of the District of Columbia will provide 450 extra spots above the 1,100 seats available at the DC Armory.

The priority registration period opened today and will close May 17th at 11:59pm.

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May 13, 2022 in Legal Ed News, Legal Education | Permalink

Thursday, May 12, 2022

The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 75, No. 3 (Spring 2022):

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May 12, 2022 in ABA Tax Section, Scholarship, Tax, Tax Scholarship | Permalink

University Pays $1.65 Million To Settle Tuition Refund Class Action Claiming Online Classes During Covid Were 'Subpar'; Students Get $185 Each; Lawyers Get $550,000

St. Louis Post-Dispatch, Lindenwood U. to Pay $1.65 Million to Settle Claim Online Classes 'Subpar':

The nearly 6,000 Lindenwood University students who had spring 2020 classes move online during the COVID-19 pandemic soon will be getting some money back.

U.S. District Judge Ronnie L. White approved a $1.65 million settlement Wednesday between the St. Charles university and a class action group of students led by Dylan Martin, of Eldon, Missouri. Each student will receive roughly $185, and the students' attorneys will receive roughly $550,000. ...

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May 12, 2022 in Legal Ed News, Legal Education | Permalink

Parsons: Cryptocurrency, Legibility, And Taxation

Amanda Parsons (Academic Fellow, Columbia; moving to Colorado), Cryptocurrency, Legibility, and Taxation:

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance on the appropriate taxation of cryptocurrency is opening the door for a critical juncture in tax law to be decided via strategic litigation. This threatens a jurisprudential evasion of the democratic and administrative process in a high-stakes moment for tax law.

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May 12, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

LoPucki: A Comprehensive Theory And Style For Using PowerPoint To Teach Law

Lynn M. LoPucki (UCLA), The PowerPoint Channel, 17 U. Mass. L. Rev. 41 (2022):

PowerPoint 1This Article is the first to present a comprehensive theory and style for using PowerPoint to teach law. The theory is that presentation software adds a channel of communication that enables the use of images in combination with words. Studies have shown that combination to substantially enhance learning. The style is based on an extensive literature regarding the use of PowerPoint in teaching law and other higher education subjects as well as the author’s experimentation with PowerPoint over two decades. The Article states fourteen principles for slide or slide sequence design, provides the arguments from the literature for and against them, and explains the techniques by which the author implements them. It argues that PowerPoint is effective for eight kinds of presentation:

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May 12, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

ABA Tax Section Hybrid 2022 May Meeting

This week's ABA Tax Section hybrid 2022 May Meeting (program) kicks off today. One of the highlight of the meeting is Saturday's luncheon and plenary session:

ABA Tax SectionKeynote Speaker: Lily Batchelder, Assistant Secretary for Tax Policy, U.S. Department of the Treasury
Roundtable: Tax Data Transparency: Changes Coming to a Post-Pandemic Tax Code? On January 20, 2021, President Biden signed Executive Order 13985, which, inter alia, established an Interagency Working Group on Equitable Data prompted by a growing recognition that the absence of demographic data in federal datasets, including tax data, results in inequities across federal programs. In addition, Treasury is undertaking a comprehensive research initiative to study the relationship between the U.S. tax code and racial inequities, in response to research identifying inequities in tax enforcement. Congress, too, is making demands for more transparency in tax data, with Senate Finance Chair Ron Wyden (D-OR) calling for the IRS to “collect and disclose more information relating to the effect of the tax code on different demographics [because] it makes no sense to blind lawmakers to the key data that would illuminate injustice in our tax laws.” This roundtable will provide new insight on the tax policy implications of greater tax data transparency in a post-Pandemic tax code. Discussion will focus on the role of tax data transparency in tax expenditure oversight; the implications of the absence of demographic data on current tax administration and policy; and how tax expenditures included in Pandemic- related legislation have created an opportunities for new data.

Moderator: Caroline Bruckner, Sr. Professorial Lecturer & Managing Director of the Kogod Tax Policy Center, American University Kogod School of Business

Panelists: Steven Dean, Professor of Law, Co-Director of the Dennis J. Block Center for the Study of International Business Law, Brooklyn Law School; Mark Mazur; Danny Yagan

Other Tax Profs with speaking roles include:

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May 12, 2022 in ABA Tax Section, Conferences, Tax | Permalink