TaxProf Blog

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

Thursday, April 25, 2019

The Metric Society Has Exacerbated Competition, Comparisonitis, And Inequality On The Road To A 21st Century Dystopia

The Metric SocietySteffen Mau (Humboldt University (Berlin)), The Metric Society: On the Quantification of the Social (2019):

In today’s world, numbers are in the ascendancy. Societies dominated by star ratings, scores, likes, and lists are rapidly emerging, as data are collected on virtually every aspect of our lives. From annual university rankings, ratings agencies, and fitness tracking technologies to our credit score and health status, everything and everybody is measured and evaluated.

In this important new book, Steffen Mau offers a critical analysis of this increasingly pervasive phenomenon. While the original intention behind the drive to quantify may have been to build trust and transparency, Mau shows how metrics have in fact become a form of social conditioning. The ubiquitous language of ranking and scoring has changed profoundly our perception of value and status. What is more, through quantification, our capacity for competition and comparison has expanded significantly — we can now measure ourselves against others in practically every area. The rise of quantification has created and strengthened social hierarchies, transforming qualitative differences into quantitative inequalities that play a decisive role in shaping the life chances of individuals.

This timely analysis of the pernicious impact of quantification will appeal to students and scholars across the social sciences, as well as anyone concerned by the cult of numbers and its impact on our lives and societies today.

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April 25, 2019 in Book Club, Law School Rankings, Legal Education | Permalink | Comments (0)

WSJ: Blackstone To Join Other Private Equity Firms In Shift From Partnership To C Corporation Structure Due To New Tax Law

BlackstoneWall Street Journal, Blackstone To Join Other Private Equity Firms In Shift From Partnership To C Corporation Structure Due To New Tax Law:

Blackstone Group said it would abandon its partnership structure and become a corporation, a move some publicly traded peers have taken in an effort to expand the ownership of their stocks.

For private-equity firms, a conversion to a so-called C corporation became a realistic option after Congress passed the new tax law in late 2017, which lowered the highest corporate rate to 21% from 35%.

The new law made it more palatable to make the switch, which the firms hope will make their stock more attractive to mutual funds and other institutional investors. Those investors typically don’t invest in publicly traded partnerships. ...

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April 25, 2019 in Tax | Permalink | Comments (0)

ProPublica: Lawmakers Confront The IRS Over Tax Audits That Target The Poor

Pro PublicaProPublica, Lawmakers Just Confronted the IRS Over Tax Audits That Target the Poor:

Over the past six months, ProPublica has detailed the myriad ways the IRS has been gutted and how that has impacted its ability to do its job. In sum: The wealthy escape scrutiny while the working poor, an easier target, are audited at high rates.

This week, Congress, in two separate hearings, confronted IRS Commissioner Charles Rettig with the findings.

“How can the Congress stand by a tax-enforcement system that punishes working people and gives the wealthy a green light to cheat?” asked Sen. Ron Wyden, D-Ore., ranking member of the Senate Finance Committee, during his opening statement on Wednesday.

Wyden was referring to a ProPublica investigation last week into the fate of the elite unit the IRS formed to keep up with the complicated tax-avoidance schemes of the wealthy. Faced with staff cuts and blowback from the wealthy and their tax representatives, the effort fumbled and was scaled way back.

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April 25, 2019 in IRS News, Tax | Permalink | Comments (0)

D.C. Circuit Upholds IRS's Voluntary Regulation Of Tax Preparers

Frank G. Colella (Pace), D.C. Circuit Upholds IRS's Voluntary Regulation of Tax Preparers — Majority Holds APA's Statutory Notice and Comment Not Required: AICPA v. IRS, 15 N.Y.U. J. L. & Bus.229 (2019):

In American Institute of Certified Public Accountants (“AICPA”) v. Internal Revenue Service (“IRS”), the D.C. Circuit for the District of Columbia Circuit (“D.C. Circuit”) reversed the District Court for the District of Columbia’s (“District Court”) dismissal and held, for a second time, that the AICPA had standing to challenge the IRS’s promulgation of the Annual Filing Season Program (“AFSP” or “the Program”). The D.C. Circuit then went a step further and ruled on the merits of the AICPA’s challenge to the IRS’s rulemaking. It held that the IRS had the statutory authority to promulgate the voluntary program to enhance the skills of licensed tax return preparers. However, while the D.C. Circuit was unanimous on standing and the merits, it split two-to-one on whether the IRS had followed proper procedure when it adopted the AFSP without first providing the requisite “notice and comment” period required by the Administrative Procedures Act (“APA”).

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April 25, 2019 in IRS News, New Cases, Tax | Permalink | Comments (0)

Wednesday, April 24, 2019

Two Law Schools Snag Hefty Donations

Law.com, Two Law Schools Snag Hefty Donations:

Pepperdine 2

Case Western Reserve University School of Law and Pepperdine University School of Law are celebrating sizable donations that will expand their offerings.

Case Western on Tuesday announced a $10 million gift from alumnus Coleman Burke, which will be used to launch a new environmental law center. It’s the largest donation in the school’s 126-year history.

Meanwhile, Pepperdine unveiled a new $2 million donation from Carrol and Rex Parris, which will endow the five-year-old Parris Institute for Professional Formation. Law dean Paul Caron noted on his TaxProf Blog that the Malibu law school has raised $20 million in endowment gifts over the last two years.

Rex Parris is a Southern California trial lawyer, and the couple’s three children graduated from Pepperdine Law. They gave the law school $1 million in 2014 to establish the professional formation institute, which aims to aid first-year law students in their professional development. The program helps students plan out their law school experience, exposes them to different aspects of the legal profession, brings in mentors and offers character training. The latest gift will ensure that the program continues while also expanding it to second-and-third year students.

“It is an honor to have the opportunity to shape the character of the young men and women who come to Pepperdine Law for a premiere legal education,” said Carrol Parris in an announcement of the gift. “Beyond expanding the skill sets of these students, the Parris Institute perhaps most importantly connects future lawyers with current legal professionals who give them practical advice on how to use those skills.”

At Case Western, the new Coleman P. Burke Center for Environmental Law will increase the school’s environmental law course offerings and serve as a research hub. The new center will be led by environmental law scholar Jonathan Adler.

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April 24, 2019 in Legal Education | Permalink | Comments (0)

WSJ: Should Trump Tweet More About Tax Cuts?

Trump Tweet

Wall Street Journal, Should Trump Tweet More About Tax Cuts?:

The latest NBC/Wall Street Journal survey finds that while Americans continue to like Donald Trump more than they did in the fall of 2016, most U.S. adults still don’t respond positively when asked to express their feelings about America’s 45th President. A full 51% of respondents in the latest survey express a negative view of Mr. Trump, 40% express a positive one, and 9% hold a neutral view.

According to NBC/WSJ polls conducted in September and October of 2016, more than 60% of respondents expressed negative views of Mr. Trump and those with positive views amounted to just 30% or less in each edition of the survey. ...

Looking at the results of the 2016 election, the Trump White House might be tempted to conclude that re-election is assured. The challenge for Mr. Trump is that Democrats are unlikely to nominate Hillary Clinton again and it’s at least conceivable that they will select a candidate who does not offend most of the country. ...

Dan Clifton of Strategas Research reports that net individual income tax cuts amounted to about $100 billion in 2018 but will double to roughly $200 billion this year.

Even though the overwhelming majority of taxpayers received tax cuts, what if the polls are right and voters improbably never realize they got relief? The NBC/WSJ survey is consistent with many other surveys taken since late 2017. Polling has often found not only that most people don’t think they received a tax cut but also that the Trump tax cut law is not all that popular.

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April 24, 2019 in Tax | Permalink | Comments (0)

AALL Releases Inaugural State Of The Law Library Profession

AALLAALL Releases Inaugural State of the Profession Report:

The American Association of Law Libraries (AALL) today releases its AALL State of the Profession 2019, a data-driven exploration of current legal information professionals’ contributions. It covers research platform expertise,contract and vendor negotiation,AI development and implementation, metadata management,legal writing and research instruction, competitive intelligence, customer and client relations, and leadership. The report provides quantitative insights on user services, technology services, operations, budgets, and partnerships. Additionally, the report features an inventory of expertise—including current skills held bylaw librarians and competencies for library and law school graduates. ...

The complimentary AALL State of the Profession 2019 Snapshot provides an introduction to the full report. The AALL State of the Profession 2019 is available in print and digital formats.

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April 24, 2019 in Legal Education | Permalink | Comments (0)

ProPublica: How The IRS Gave Up Fighting Political Dark Money Groups

Pro PublicaProPublica, How the IRS Gave Up Fighting Political Dark Money Groups:

Six years after it was excoriated for allegedly targeting conservative organizations, the agency has largely given up on regulating an entire category of nonprofits. The result: More dark money gushes into the political system.

In the past decade, people, companies and unions have dispensed more than $1 billion in dark money, according to the Center for Responsive Politics. The very definition of that phrase, to many critics, epitomizes the problem of shadowy political influence: Shielded by the cloak of anonymity, typically wealthy interests are permitted to pass limitless pools of cash through nonprofits to benefit candidates or political initiatives without contributing directly to campaigns.

Such spending is legal because of a massive loophole. Section 501(c)(4) of the U.S. tax code allows organizations to make independent expenditures on politics while concealing their donors’ names — as long as politics isn’t the organization’s “primary activity.” The Internal Revenue Service has the daunting task of trying to determine when nonprofits in that category, known colloquially as C4s, violate that vague standard.

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April 24, 2019 in IRS News, Tax | Permalink | Comments (0)

Pepperdine Law School Seeks To Fill Two Development Positions

PEPPERDINE CAMPUS WITH LOGO (2019)Pepperdine Law is seeking to fill two development positions due to the  departure of Associate Dean Jim Gash to become President of Pepperdine University and Director of Development Ben Gifford to become an Assistant U.S. Attorney. This is an exciting time to join the leadership team at Pepperdine Law and build on our success over the past two years in raising over $20 million in new endowment gifts  (the most in any two-year period in our law school's 50-year history) as we continue our rise:

Assistant Vice Chancellor and Senior Director of Development, School of Law:

The Assistant Vice Chancellor and Senior Director of Development will have primary responsibility for developing, organizing, leading, and implementing a comprehensive fundraising program and strategies for the School of Law and plays an important front-line fundraising role. As a major gift officer, this position will be expected to personally raise major gifts in support of the dean’s fundraising priorities, focusing on donors with a capacity of $25,000 to $1M+. In addition, the Assistant Vice Chancellor and Senior Director of Development will mentor and supervise the Director, Law Associates, the annual giving officer at the School of Law whose primary focus is on gifts of $1K to $25K.

Director, Law Associates:

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April 24, 2019 in Legal Education | Permalink | Comments (0)

If The ACA Is Enjoined, Must The TCJA Be Enjoined Too?

Yale Notice & CommentSam Wice, If the ACA Is Enjoined, Must the TCJA Be Enjoined Too?, 36 Yale J. on Reg.: Notice & Comment (2019):

The Department of Justice recently announced that it will support a district court ruling that the entire Affordable Care Act (ACA) should be enjoined as the allegedly unconstitutional modifications in the Tax Cuts and Jobs Act (TCJA) that zeroed out the individual mandate to purchase health insurance are inseverable from the rest of the ACA. ... [A]ssuming for the sake of argument that the lower court’s holding is correct, it seems that the court did not take its holding to the logical conclusion of its legal reasoning. The court’s opinion seems to imply that it also should have enjoined the TCJA in its entirety.

By the severability argument used by the district court, it should have ruled the offending provision added by the TCJA inseverable from the TCJA and enjoined the entire TCJA too. ...

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April 24, 2019 in Tax | Permalink | Comments (0)

Dorothy Brown: Goodbye, But Not Farewell

Dorothy

Dorothy Brown headed back to Emory yesterday after completing her stint at Pepperdine as our Straus Distinguished Visiting Professor. She left behind one old friend and countless new ones. She regaled our students in Federal Income Tax and Tax Policy, which she co-taught (cough) with a frazzled dean. I will have three lasting memories of Dorothy's time here: (1) the great tax workshop series we put together, with seven outstanding speakers and wonderful post-presentation lunches; (2) the wonderful Critical Tax Conference we co-hosted, particularly Dorothy's fiery keynote address, The Life of a Tax Crit: When Keeping It Real Can Go Really Really Wrong; and (3) most importantly, the relationships Dorothy developed in her four months here, particularly with the students and staff (perhaps never before has a Straus Distinguished Visiting Professor (certainly not me) taken several staff people out for meals and given them gifts on her departure). We hope Dorothy will be back in Malibu in the future, initially as part of our Spring 2020 tax workshop series.

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April 24, 2019 in Legal Education, Tax, Tax Prof Moves | Permalink | Comments (0)

Research Guide On The Indexation Of Capital Gains

Bruce Bartlett, Research on the Indexation of Capital Gains to Inflation:

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April 24, 2019 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 23, 2019

Kyle Rozema To Join Washington University Tax Faculty

RozemaKyle Rozema (Wachtell Lipton Fellow in Behavioral Law and Economics, Chicago) has accepted a tenure-track tax position at Washington University, beginning in August 2019:

Kyle Rozema’s research interests are in how legal rules affect economic inequality, disparate outcomes, and discrimination. To study these questions, he uses a range of empirical methods, collaborates across disciplines, and collects original data. His main research interests are in tax law and policy. Kyle's tax research explores the distributional consequences of taxes and the interactions between tax laws and other public policies. Much of his tax research to date seeks to understand the extent to which the distributional consequences of tax laws are more nuanced than conventional wisdom would suggest. Beyond tax law, Kyle conducts empirical research on bias and discrimination in the law in general, largely focusing on the manners in which discrimination can affect employment patterns in law-related professions.

Kyle's recent publications include:

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April 23, 2019 in Legal Education, Tax, Tax Prof Moves | Permalink | Comments (0)

Ventry Presents Free File: A Story of Agency Capture Today At Georgetown

VentryDennis J. Ventry, Jr. (UC-Davis) presents Free File: A Story of Agency Capture at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Lilian Faulhaber:

The IRS Free File program and the Free File Alliance (FFA) harm taxpayers. Meanwhile, the IRS refuses to conduct any meaningful oversight over the program or FFA companies, thereby failing to protect taxpayers and exacerbating an already abusive program.Worse, Congress wants to make Free File a permanent part of the Internal Revenue Code, obligating the IRS to partner in perpetuity with FFA companies and their abusive tactics. ...

Each year, I encourage my tax students to use Free File to file their federal income taxes. (I also encourage them to use CalFile, California’s truly freee-filing web-based software, for their California income tax returns and to avoid being upsold state filing services from FFA companies.) I also warn them about the upselling and forced arbitration and likely impermissible use and disclosure of their tax return information. Armed with this knowledge, they become savvy consumers of FFA companies’ purportedly free products. Also armed with this knowledge, they can report back and chronicle the abuses of the system, which they have done for years. This year was no exception. ...

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April 23, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Oei Presents The Making Of The § 199A Regs Today At San Diego

Oei (2018)Shu-Yi Oei (Boston College) presents Beyond Notice-and-Comment: The Making of the § 199A Regulations (with Leigh Osofsky (North Carolina)) at San Diego today as part of its Tax Law Speakers Series hosted by Jordan Barry and Miranda Perry Fleischer:

Congress passes a highly transformative but hastily drafted legal reform. Who comments in the regulatory process, when, and what are the implications? In this Article, we study these questions by examining how the regulatory process has unfolded in the case of § 199A, one of the central provisions from the monumental 2017 tax reform.

We document the comments that went into making the § 199A regulations from the time of legislative enactment through the hearing on the proposed regulations. We show that many comments were made before the proposed regulations were issued and the official administrative law notice-and-comment period had even opened. We examine how Treasury explicitly considered these comments in the proposed regulations. And we explore how these comments and other engagements—which were not wholly transparent to the public—shaped the proposed regulations and the subsequent conversation in the actual notice-and-comment period. We also investigate the role of indirect public dialogue and comments received after the official close of the notice-and-comment period.

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April 23, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Greene Presents A Theory Of Poverty: Legal Immobility Today At NYU

GreeneSara Sternberg Greene (Duke) presents A Theory of Poverty: Legal Immobility, 96 Wash. U. L. Rev. 753 (2019), at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

The puzzle of why the cycle of poverty persists and upward socioeconomic mobility is so difficult has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state and local law, in perpetuating poverty is largely ignored. This Article offers a new theory of poverty, one that introduces the concept of legal immobility. Legal immobility considers the cumulative effects of state and local laws as a mechanism through which poverty is perpetuated and upward socioeconomic mobility is stunted. The Article provides an initial description and normative account of this undertheorized aspect of our laws and argues that in order to fully understand poverty, a more complete understanding of the relationship between law and poverty is needed.

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April 23, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Kleinbard: Critical Tax Thinking

Critical Tax EdEdward D. Kleinbard (USC), Critical Tax Thinking:

This presentation [at the 22nd Annual Critical Tax Conference at Pepperdine On April 6] considers the aims of critical tax studies and offers three suggestions. First, critical tax papers too often fixate on taxes as both the problem and the solution. In many cases, in particular when progressivity is the aim, public spending is the better policy lever. Second, one should not concede that taxation imposes an inexorable tradeoff between efficiency and equity goals. This again understates the importance of the spending side of things. Taxes are a necessary cost of funding spending, and spending in turn, by reaching places where markets are incomplete, can have efficiency payoffs greater than the deadweight loss of taxation. That is, even a leaky bucket can extinguish a fire. To this end, recent research has pointed to the role of well-designed government spending in encouraging an “inclusive economy,” in which growth is both faster and more broadly shared than would otherwise be the case.

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April 23, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Law Schools Clamber To Raise Bar Pass Rates

Big FailLaw.com, The Big Fail Part II: Law Schools Clamber to Raise Bar Pass Rates:

How to reverse sliding bar exam pass rates is a puzzle that law deans across the country are trying to solve. The national average score on the Multistate Bar Exam—the multiple choice portion of the exam—hit a 34-year low last July, and thousands of law graduates each year are failing to make the cut.

Law.com analyzed the bar pass rates reported by schools to the American Bar Association between 2013 and 2017—the 2018 results aren’t yet available—and found that 35 of the 203 ABA-accredited law schools had pass rates decreases of more than 20 percent in those four years. Further, 42 of the ABA-accredited law schools saw their pass rate fall anywhere from 10 to 20 percent. 

There is plenty of debate about why pass rates have fallen, but most experts agree that the 36-percent decline in law school applicants between 2010 and 2016 played a major role. Many schools dipped deeper into their applicant pool and enrolled students with lower LSAT scores and undergraduate grades. Other elements such changing law school pedagogy and the rise of online bar exam preparation are also at play, they say.

Big Fail

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April 23, 2019 in Legal Education | Permalink | Comments (0)

Abreu & Greenstein: Rebranding Tax/Increasing Diversity

Alice Abreu (Temple) & Richard Greenstein (Temple), Rebranding Tax/Increasing Diversity, 96 Denv. L. Rev. 1 (2018):

Tax gets a bad rap. It is generally thought to be coercive, burdensome, complicated, unpleasant, and boring. The annual ritual of filing tax returns underscores the taking aspect of taxation by reminding even those who receive refunds that money has been taken from them. This view of tax—that it is about taking—is not only inaccurate and incomplete, but it may have had two related, significant, deleterious, but unexamined effects. Viewing the tax system only as an instrument of taking may contribute to the creation of a tax bar that is more white and less diverse than the bar in general, and that may, in turn, contribute to the existence of a tax system that disproportionately favors the relatively non-diverse population of taxpayers at the top of the income distribution. This Article examines the first of these effects. We attempt to answer to a question that has gone unasked for far too long: Why is the tax bar so white?

AG2

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April 23, 2019 in Scholarship, Tax | Permalink | Comments (1)

Building A Better Bar Exam

Marsha Griggs (Washburn), Building a Better Bar Exam:

In the wake of declining bar passage rates and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, 36 U.S. jurisdictions have adopted the UBE. I predict that in a few years the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform exam is no longer the question. Now that the UBE has firmly taken root, the question to be answered is what can be done to make sure that the UBE does less harm than good?

UBE (2019)

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April 23, 2019 in Legal Education, Scholarship | Permalink | Comments (1)

Monday, April 22, 2019

Morse Presents GILTI: The Cooperative Potential Of A Unilateral Minimum Tax Today At Pepperdine

Morse (2018)Susan C. Morse (Texas) presents GILTI: The Cooperative Potential of a Unilateral Minimum Tax at Pepperdine today as part of our Tax Policy Workshop Series hosted by Dorothy Brown and Paul Caron and funded in part by a generous gift from Scott Racine:

Could the U.S. tax on global intangible low-taxed income, or GILTI, end the game of international tax competition? The GILTI tax is a unilateral minimum tax enacted as part as 2017 tax statute known as the TCJA. There is a long-shot possibility that it might save the global corporate tax. A robust global corporate tax in turn could support innovative new policy options such as the use of corporate tax revenue to further international social justice goals. The stakes are high. Is there any chance that GILTI could do it? ...

This paper proceeds as follows. Part I compares the GILTI tax to the U.S. deferral regime that preceded it, and describes the cooperative potential of the U.S. international corporate tax law after the 2017 Act. Part II explains the details of GILTI structure, which works as advertised if international tax systems conform with respect to timing, rate and base. Part III explains that taxpayers will attempt to disrupt the convergence of timing, rate and base. Tax administrators, in turn, will face the question of whether, and how, to pursue the possibility of harmonizing corporate tax systems in light of the tools offered by the U.S. international corporate tax law after the 2017 Act.

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April 22, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Brown: Homeownership In Black And White: —The Role Of Tax Policy In Increasing Housing Inequity

Dorothy Brown (Emory; Visiting at Pepperdine), Homeownership in Black and White: The Role of Tax Policy in Increasing Housing Inequity, 49 U. Mem. L. Rev. 205 (2018):

Persistent poverty discussions very rarely consider how tax reform might provide additional revenues as solutions are considered. This Essay argues that tax subsidies for homeownership that support most white homeowner experiences to the exclusion of most black homeowner experiences are ripe for reform.

April 22, 2019 in Scholarship, Tax | Permalink | Comments (1)

Who Profits When You Pay Your Taxes?

Free FileWNYC Studios, Who Profits When You Pay Your Taxes?:

Tax Day is behind us, but the Taxpayer First Act is not. The bipartisan proposal passed the House last week and is now under consideration in the Senate — and one of the provisions is exactly what the for-profit tax preparation industry has been pushing for.

Through an agreement with the IRS, companies like H&R Block and Intuit currently offer free tax filing services to taxpayers making less than $66,000 dollars a year. But only 1.6 percent of taxpayers actually use Free File, and critics say that the companies engage in aggressive up-selling through the portal. A provision in the Taxpayer First Act would bar the IRS from developing their own free system.

Dennis Ventry is a tax scholar at the University of California, Davis. He has written about the shortcomings of the Free File program, and explains to Bob why he thinks the IRS isn't doing enough to protect taxpayers who try to use it. He wrote an opinion piece last year titled Free File Providers Scam Taxpayers; Congress Shouldn't Be Fooled — which made him the target of a public records request from an industry group [New York Times, Industries Turn Freedom of Information Requests on Their Critics].

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April 22, 2019 in IRS News, Tax | Permalink | Comments (0)

The U.S. Department Of Justice Tax Division Seeks To Hire A Trial Attorney

DOJ Logo (2016)The U.S. Department of Justice Tax Division seeks to hire a trial attorney:

The Tax Division is looking for civil trial attorneys to join our team. Our attorneys have a passion for litigation; a deep interest in public service; and the ability to work both collaboratively and independently. Familiarity with tax law and the use of technology in organizing, developing, and presenting a case at trial is helpful, but not required. Attorneys in the Civil Trial Sections represent the United States in litigation in federal and state courts across the country.

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April 22, 2019 in Tax | Permalink | Comments (0)

Pepperdine Receives $2m Gift For Parris Institute For Professional Formation; Over $20m In New Endowment Gifts Raised In 2 Years

Parris 5

Pepperdine School of Law Announces $2M Endowment of Parris Institute for Professional Formation:

The Pepperdine School of Law has announced a pacesetting gift by benefactors Carrol and R. Rex Parris to formally endow the Parris Institute for Professional Formation. The Parris Institute, established in 2014 with an initial gift of $1 million, is dedicated to the professional development of first-year law students at Pepperdine Law. An additional $2 million presented in 2019 names the Parris Institute in perpetuity and firmly establishes the Parris family legacy at Pepperdine Law.

A national model for professional leadership training, the Parris Institute is committed to enhancing the core internal character competencies that have marked the great contributions of lawyers throughout human history.

“We are humbled by the continued generosity of Rex and Carrol Parris in funding the critical work of the Parris Institute for Professional Formation, which continues to provide one of the finest law school programs in ethical leadership training for our students," said Paul L. Caron, Duane and Kelly Roberts Dean of the School of Law.

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April 22, 2019 in Legal Education | Permalink | Comments (1)

Lesson From The Tax Court: Distinguishing Investment From Business Activity

Tax Court Logo 2The U.S. economy rests in no small part on capital allocation decisions made by a panoply of private participants.  Adam Smith explained in The Wealth of Nations why such a system “handily” beats all the others.  These individualized decisions find their practical expression in the buying and selling of “stock” of corporations on the “stock” market. 

Since 1921 Congress has supported this mode of capital formation by taxing income derived from capital at a lower rate than income from labor.  I blogged about this huge tax subsidy in “The Tax Lawyer’s Wedding Toast” last year.  Curiously, however, Congress did not permit deductions for the expenses of managing stock market investments until it enacted what is now §212(1) in the Revenue Act of 1942.  Until then, while taxpayers could deduct the ordinary and necessary expenses associated with trade or business activity (§162), they could not take parallel deductions for expenses associated with the investment of capital. 

Section 212(1) is the fix: it permits the same deductions as §162 for activities that are not a trade or business but are still for “the production or collection of income.”  

Investment expenses are still, however, disfavored by the deduction hierarchy created by §62.  If a taxpayer can hook expenses to a trade or business (or a §212(2) rental real estate), then §62 permits the deductions above the line.  But if the expenses relate only to an investment activity, then while §212(1) allows the same deductions, they must be taken below the line.  Bad: that means they fight against the standard deduction.  Worse: since they are not mentioned in §67(b), they are subject to a 2% floor.  Worst: starting in 2018 such deductions get sucked into the black hole of the recently enacted §67(g).  That section completely disallows miscellaneous itemized deductions.  You can think of it as 100% floor.  Yuck. 

The deduction hierarchy makes it important to know when an activity is a trade or business or mere investment.  In Ames D. Ray v. Commissioner, T.C. Memo. 2019-36 (Apr. 15, 2019), Judge Nega teaches a nice lesson about the difference.  Mr. Ray argued that he was entitled to deduct certain legal expenses, relating to three lawsuits, under §162.  He was not successful.  Judge Nega, however, allowed Mr. Ray the deduction under §212.  To see why, dive below the fold.

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April 22, 2019 in Bryan Camp, New Cases, Scholarship, Tax | Permalink | Comments (3)

Windmills Of Your Mind: The Importance Of Neuro-Intelligence For Law Students, Law Profs, And Lawyers

Debra S. Austin (Denver), Windmills of Your Mind: Understanding the Neurobiology of Emotion, 54 Wake Forest L. Rev. ___ (2019):

Intelligence has been parsed into categories including general intelligence (IQ), which is cognitive capacity, and emotional intelligence (EQ), describing social competency. Perhaps the most important new form of intelligence that lawyers can cultivate is neuro-intelligence (NQ), which is an understanding of the most important tool a lawyer must deploy — the brain. NQ can help us understand how emotions that arise in the brain are often experienced in the windmills of the mind as “words that jangle in your head”. Boomers will enjoy the Noel Harrison version of Windmills of your Mind, which won the 1968 Academy Award for Best Original Song, while Millennials should check out the Sting version from the 1999 remake of The Thomas Crowne Affair.

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April 22, 2019 in Legal Education, Scholarship | Permalink | Comments (0)

TaxProf Blog Weekend Roundup

Sunday, April 21, 2019

Disinvitation Of Conservative Harvard Professor Divides Canadian College

MansfieldInside Higher Ed, A College Divided Over a Harvard Professor:

Concordia University’s Liberal Arts College asked the conservative political philosopher Harvey Mansfield to speak at its 40th anniversary gala, planned for next month. Citing alumni backlash over Mansfield’s past controversial statements on gender and gay marriage, the Canadian college then uninvited him and postponed the event.

Mansfield, the William R. Kenan Jr. Professor of Government at Harvard University, recently went public with the incident, via a ticked-off op-ed [The Theory Behind My Disinvitation] in The Wall Street Journal. And faculty members within the intimate college remain divided over the decision to rescind Mansfield’s invite.

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April 21, 2019 in Legal Education | Permalink | Comments (2)

Business Tax Reform In The Wake Of The Tax Cuts And Jobs Act

Kenneth J. McKenzie (Calgary) & Michael Smart (Toronto), Tax Policy Next to the Elephant: Business Tax Reform in the Wake of the US Tax Cuts and Jobs Act:

While there is considerable uncertainty regarding the US Tax Cut and Jobs Act’s (TCJA) economic and fiscal impacts, one thing is certain – the significant corporate tax competitiveness advantage that Canada enjoyed over the US for years has disappeared. This Commentary explores some major TCJA measures as they relate to corporations, examines their implications for Canadian business, evaluates Ottawa’s response in the Fall Economic Statement and discusses what is required going forward.

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April 21, 2019 in Scholarship, Tax | Permalink | Comments (0)

'The Glory And Joy Of Easter Sunday Is Only Made Possible By The Anguish And Suffering Of Good Friday'

CrossNew York Times op-ed:  What It Means to Worship a Man Crucified as a Criminal, by Peter Wehner (Ethics & Public Policy Center):

A God who allows suffering is a mystery, but so is a God who suffered. ...

The Episcopal priest Fleming Rutledge has written that until the accounts of Jesus’ death burst upon the Mediterranean world, “no one in the history of human imagination had conceived of such a thing as the worship of a crucified man.” And yet the crucifixion — an emblem of agony and one of the cruelest methods of execution ever practiced — became a historical pivot point and eventually the most compelling symbol of the most popular faith on earth.

As a non-Christian friend of mine put it to me recently, the idea that people would worship a God who is compassionate toward us is one thing, but to worship a God who suffers and dies — as a condemned criminal, no less — is distinct to Christianity. In my friend’s understated words, “When you think about it, it is a little strange.”

Perhaps the aspect of the crucifixion that is easiest to understand is that according to Christian theology, atonement is the means through which human beings — broken, fallen, sinful — are reconciled to God. The ideal needed to be sacrificed for the non-ideal, the worthy for the unworthy.

But the cross is more than simply a gateway to the City of God. “I could never myself believe in God, if it were not for the cross,” John Stott, one of the most important Christian evangelists of the last century, wrote in The Cross of Christ. “The only God I believe in is the One Nietzsche ridiculed as ‘God on the cross.’ In the real world of pain, how could one worship a God who was immune to it?” From the perspective of Christianity, one can question why God allows suffering, but one cannot say God doesn’t understand it. He is not remote, indifferent, untouched or unscarred. ...

[T]here’s no good answer to the question, “Why is there suffering?” Jesus never answers that question, and even if we had the theological answer, it would not ease our burdens in any significant way. What God offers instead is the promise that he is with us in our suffering; that he can bring good out of it (life out of death, forgiveness out of sin); and that one day he will put a stop to it and redeem it. God, Revelation tells us, will make “all things new.” For now, though, we are part of a drama unfolding in a broken world, one in which God chose to become a protagonist.

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April 21, 2019 in Legal Education | Permalink | Comments (2)

The Top Five New Tax Papers

SSRN Logo (2018)This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

  1. [287 Downloads]  Residual Profit Allocation by Income, by Michael Devereux (Oxford), Alan Auerbach (UC-Berkeley), Michael Keen (IMF), Paul Oosterhuis (Skadden), Wolfgang Schön (Max Planck) & John Vella (Oxford) (reviewed by Christine Kim (Utah) here)
  2. [282 Downloads]  Taxing the Digital Economy Post BEPS ... Seriously, by Andrés Báez (Universidad Carlos III de Madrid) & Yariv Brauner (Florida)
  3. [193 Downloads]  The Marriage of Artificial Intelligence and Tax Law: Past, Present, and Future, by Blazej Kuzniacki (Ministry of Finance, Poland)
  4. [159 Downloads]  The Fraud Triangle and Tax Evasion, by Leandra Lederman (Indiana)
  5. [143 Downloads]  The Architecture of a Basic Income, by Miranda Perry Fleischer (San Diego) & Daniel Jacob Hemel (Chicago)

April 21, 2019 in Scholarship | Permalink | Comments (0)

Saturday, April 20, 2019

This Week's Ten Most Popular TaxProf Blog Posts

88.6% Of The Class Of 2016 Passed The Bar Within 2 Years Of Graduation

ABA Logo (2016)ABA Section of Legal Education Releases Comprehensive Report on Bar Passage Data:

The Managing Director’s Office of the ABA Section of Legal Education and Admissions to the Bar released today a comprehensive set of data on bar passage outcomes for American Bar Association-approved law schools.

That data shows that in the aggregate 88.57 percent of law graduates in 2016 who sat for a bar exam within two years of graduating have passed a bar exam. That two-year “ultimate” aggregate success rate is substantially the same as the outcome for those who graduated in 2015, where the ultimate pass rate was 88.49 percent. The 2016 ultimate bar pass data also reveals that 97 percent of all graduates had sat for a bar exam within two years of graduation and that schools were able to track 98.5 percent of graduates.

Here are the 25 law schools with the highest ultimate bar pass rates:

School % Pass
1. CHICAGO 100.00%
1. CONCORDIA 100.00%
1. WISCONSIN 100.00%
1. YALE 100.00%
5. MICHIGAN 99.67%
6. PENNSYLVANIA 99.61%
7. HARVARD 99.48%
8. MARQUETTE 99.47%
9. STANFORD 99.43%
10. ALABAMA 98.56%
11. BAYLOR 98.08%
12. VIRGINIA 97.85%
13. CORNELL 97.79%
14. VANDERBILT 97.77%
15. ILLINOIS 97.58%
16. GEORGE WASHINGTON 97.55%
17. UC-BERKELEY 97.49%
18. TEMPLE 97.45%
19. FORDHAM 97.33%
20. REGENT 97.18%
21. CUNY 97.12%
22. NEW YORK UNIVERSITY 97.07%
23. PENN STATE - DICKINSON 96.97%
24. ARKANSAS - FAYETTEVILLE 96.91%
25. GEORGIA 96.83%

Here are the 25 U.S. law schools with the lowest ultimate bar pass rates:

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April 20, 2019 in Legal Education | Permalink | Comments (0)

Humans vs. Robots: Rethinking Policy For A More Sustainable Future

Kathryn Kisska-Schulze (Clemson University College of Business) & Karie Davis-Nozemack (Georgia Institute of Technology), Humans vs. Robots: Rethinking Policy For A More Sustainable Future, 79 Md. L. Rev. ___ (2020):

Robotic and software innovation threatens to displace one third of the global workforce by 2030. Widespread worker displacement would decimate U.S. social safety net funding. To address these issues, Bill Gates and others have proposed a robot tax. A robot tax, while elegant on its face, masks the underlying tension between innovation and employment tax policies. Only by examining the foundational principles of these two policies is it evident that their dissonance can only be harmonized by requiring these policies to remain faithful to their original objectives.

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April 20, 2019 in Scholarship, Tax | Permalink | Comments (0)

College Wouldn’t Cost So Much If Students And Faculty Worked Harder

VedderWall Street Journal op-ed:  College Wouldn’t Cost So Much If Students and Faculty Worked Harder, by Richard Vedder (Ohio University; author, Restoring the Promise: American Higher Education Today (2019)):

I assign far less reading, demand less writing, and give higher grades than I did two generations ago.

One reason college is so costly and so little real learning occurs is that collegiate resources are vastly underused. Students don’t study much, professors teach little, few people read most of the obscure papers the professors write, and even the buildings are empty most of the time.

The New York Federal Reserve says more than 40% of recent college graduates are “underemployed,” but many already are while in school. Surveys of student work habits find that the average amount of time spent in class and otherwise studying is about 27 hours a week. The typical student takes classes only 32 weeks a year, so he spends fewer than 900 hours annually on academics—less time than a typical eighth-grader, and perhaps half the time their parents work to help finance college.

It wasn’t always this way. As economists Philip Babcock and Mindy Marks have demonstrated, students in the middle of the 20th century spent nearly 50% more time—around 40 hours weekly—studying. They now lack incentives to work very hard, since the average grade today—a B or B-plus—is much higher than in 1960 when the average grade-point average of around 2.5 implied a typical grade of B-minus or C-plus.

I’m part of the problem: I’ve been teaching for 55 years, and I assign far less reading, demand less writing, and give higher grades than I did two generations ago. ...

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April 20, 2019 in Book Club, Legal Education | Permalink | Comments (5)

Friday, April 19, 2019

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Abramowicz & Blair-Stanek's Contractual Tax Reform

This week, Sloan Speck (Colorado) reviews a new work by Michael Abramowicz (George Washington) & Andrew Blair-Stanek (Maryland), Contractual Tax Reform, 61 Wm. & Mary L. Rev. ___ (2019).

Speck (2017)In Contractual Tax Reform, Michael Abramowicz and Andrew Blair-Stanek develop an innovative proposal that would allow private intermediaries to offer alternative tax regimes to subsets of taxpayers. These intermediaries would target specific taxpayers with algorithms developed using artificial intelligence, and these taxpayers then would be able to opt into the particular alternative tax regime offered by the intermediary. The catch is that the overall tax revenue from the intermediary’s customers can’t be less than they would pay, in the aggregate, under the regular tax system. Assuming that internalities aren’t material, this arrangement is Pareto efficient: only taxpayers who prefer the alternative tax regime would choose the intermediary, and total tax revenue would not fall. Everyone’s better off, and no one’s worse off.

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April 19, 2019 in Scholarship, Sloan Speck, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

NY Times: The Impact Of The Trump Tax Cuts On Individuals, Businesses

New York Times, On the Last Day to File Taxes, Here’s How the Trump Tax Cut Unfolded:

While tax cuts are arguably one of the Trump administration’s biggest achievements to date, and businesses have been celebrating the profit windfall they received from a lowering of corporate rates, many Americans seem not to have noticed that individual taxes also fell.

Chalk that up to an early drop in the size of tax refunds for some, and the fact that, divided over a year’s worth of paychecks, the tax benefit may not have seemed consequential.

Now that the effects of the tax act are becoming clearer, here are some early conclusions about its impact on people and businesses:

Individuals Owed Less, but Did They Notice? ...

NYT1

Business Did What Business Does ...

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April 19, 2019 in Tax | Permalink | Comments (2)

WSJ: The Student-Debt Crisis Hits Hardest At Historically Black Colleges

HBCUWall Street Journal, The Student-Debt Crisis Hits Hardest at Historically Black Colleges:

Long a path to financial security, traditionally African-American schools are now producing graduates who struggle with disproportionately high debt.

Historically black colleges and universities helped lift generations of African-Americans to economic security. Now, attendance has become a financial drag on many of their young graduates, members of a new generation hit particularly hard by the student-debt crisis.

Students of these institutions, known as HBCUs, are leaving with disproportionately high loans compared with their peers at other schools, a Wall Street Journal analysis of Education Department data found, and are less likely to repay those loans than they were a decade ago.

Among key findings of the Journal’s examination of 2017 data, the latest available:

  • HBCU alumni have a median federal-debt load of about $29,000 at graduation—32% above graduates of other public and nonprofit four-year schools.
  • The majority of HBCU grads haven’t paid down even $1 of their original loan balance in the first few years out of school.
  • America’s 82 four-year HBCUs make up 5% of four-year institutions, but more than 50% of the 100 schools with the lowest three-year student-loan repayment rates.

Though HBCUs typically cost less than other public and nonprofit four-year schools, these colleges have long trailed those peers on measures of debt and repayment. Now they are trailing by far greater margins. ...

WSJ 3

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April 19, 2019 in Legal Education | Permalink | Comments (0)

Tax Experimentation

Michael Abramowicz (George Washington), Tax Experimentation, 71 Fla. L. Rev. 65 (2019):

Random experiments could allow the government to test tax policies before they are enacted into general law. Such experiments can be revenue-neutral, with the tax authority ensuring ex post that average tax revenues received from taxpayers in the treatment and control groups are equal. Taxpayers might thus volunteer even for experiments that would broaden the tax base, for example by eliminating deductions. Continued participation by taxpayers in such experiments would indicate that the proposed reforms are efficient at least if externalities are disregarded. Non-revenue-neutral experiments raise greater concerns about horizontal inequity, but they may be helpful in addressing questions about effects of tax rates and in increasing participation.

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April 19, 2019 in Scholarship, Tax | Permalink | Comments (0)

Assessment Is A 'Hot Mess'

Inside Higher Ed, Harsh Take on Assessment … From Assessment Pros:

Ask the many assessment haters in higher education who is most to blame for what they perceive as the fixation on trying to measure student learning outcomes, and they are likely to put accreditors at the top of the list.

Which is why it was so unexpected last week to hear a group of experts on student learning tell attendees at a regional accreditor's conference here that most assessment activity to date has been a "hot mess" and that efforts to "measure" how much students learn should be used help individual students and improve the quality of instruction, not to judge the performance of colleges and universities.

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April 19, 2019 in Legal Education | Permalink | Comments (0)

Pew: Growing Partisan Divide Over Fairness Of The Nation’s Tax System

Pew Research Center, Growing Partisan Divide Over Fairness of the Nation’s Tax System:

Pew 1

[O]verall public views of the fairness of the nation’s tax system have changed only modestly since 2017, before passage of major tax legislation. However, partisan differences on tax fairness have increased considerably since then, and now are wider than at any point in at least two decades.

Two years ago, Republicans and Democrats had similar views of the fairness of the tax system. Today, 64% of Republicans and Republican-leaning independents say the present tax system is very or moderately fair; just half as many Democrats and Democratic leaners (32%) view the tax system as fair. The share of Republicans who say the tax system is fair has increased 21 percentage points since 2017. Over this period, the share of Democrats viewing the tax system as fair has declined nine points.

Two years ago, Republicans and Democrats had similar views of the fairness of the tax system. Today, 64% of Republicans and Republican-leaning independents say the present tax system is very or moderately fair; just half as many Democrats and Democratic leaners (32%) view the tax system as fair. The share of Republicans who say the tax system is fair has increased 21 percentage points since 2017. Over this period, the share of Democrats viewing the tax system as fair has declined nine points.

About seven-in-ten Republicans (71%) approve of the tax law, including 43% who strongly approve. Early last year, about the same share of Republicans approved of the tax law (75%), but a majority (57%) strongly approved.

Most Democrats continue to express negative views of the tax law. Today, 79% of Democrats disapprove, including 59% who strongly disapprove.

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April 19, 2019 in Tax | Permalink | Comments (1)

Thursday, April 18, 2019

Washington University Goes Tuition-Free For 50% Of Its Medical Students

Wash UFollowing up on my previous posts:

Inside Higher Ed, Free-Tuition Idea Spreads in Med Schools:

Last summer New York University's medical school, where the sticker price on tuition was more than $55,000 a year, announced that all current and new students would henceforth receive full-tuition scholarships.

One question raised by the move was whether top medical schools would match NYU's new policy.

On Tuesday, another leading medical school — at Washington University in St. Louis — announced that it was going to spend $100 million so that more than half of its new students from now on will not pay tuition. Currently, only about 20 of the students in an M.D. class of 120 receive full-tuition scholarships. Those not receiving full scholarships in the future will be able to receive partial scholarships. (Under a tuition plan that assures students the same rates for four years, Wash U currently charges $65,044 a year for tuition, with total costs of more than $85,000.)

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April 18, 2019 in Legal Education | Permalink | Comments (3)

The Estate Tax Is Unconstitutional

Henry Lowenstein (Coastal Carolina University) & Kathryn Kisska-Schulze (Clemson University College of Business), A Historical Examination of the Constitutionality of the Federal Estate Tax, 27 Wm. & Mary Bill Rts. J. 123 (2018):

During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.

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April 18, 2019 in Scholarship, Tax | Permalink | Comments (5)

The Death Of An Adjunct ... And The University's Soul

AdjunctThe Atlantic, The Death of an Adjunct:

Thea Hunter was a promising, brilliant scholar. And then she got trapped in academia’s permanent underclass. ...

To be a perennial adjunct professor is to hear the constant tone of higher education’s death knell. The story is well known—the long hours, the heavy workload, the insufficient pay—as academia relies on adjunct professors, non-tenured faculty members, who are often paid pennies on the dollar to do the same work required of their tenured colleagues.

The position is often inaccurately described as akin to a form of slavery. Thea, a scholar of rights, slavery, and freedom, would have been the first to say that is not the case. It is more like the lowest rung in a caste system, the one that underrepresented minorities tend to call home.

“Just as the doors of academe have been opened more widely than heretofore to marginalized groups, the opportunity structure for academic careers has been turned on its head,” a 2016 report on faculty diversity from the TIAA Institute, a nonprofit research center focused in part on higher education, reads. From 1993 to 2013, the percentage of underrepresented minorities in non-tenure-track part-time faculty positions in higher education grew by 230 percent. By contrast, the percentage of underrepresented minorities in full-time tenure-track positions grew by just 30 percent.

Nearly 80 percent of faculty members were tenured or tenure-track in 1969. Now roughly three-quarters of faculty are nontenured. The jobs that are available—as an adjunct, or a visiting professor—rest on shaky foundations, as those who occupy them try to balance work and life, often without benefits. And Thea wobbled for years.

She was on the tenure track, and then she wasn’t. She had a promising job lead, and then it wasn’t so promising. She was on her way to publishing, and then that fizzled. Meanwhile, her hopes and setbacks were compounded by an underlying reality that many adjuncts face: a lack of health insurance. She was a black woman in academia, and she was flying against a current. Some professors soar; adjuncts flap and dive and flap again—until they can’t flap anymore. ...

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April 18, 2019 in Book Club, Legal Education | Permalink | Comments (8)

Hellerstein & Appleby: Substantive And Enforcement Jurisdiction In A Post-Wayfair World

Walter Hellerstein (Georgia) & Andrew D. Appleby (Stetson), Substantive and Enforcement Jurisdiction in a Post-Wayfair World, 90 State Tax Notes 283 (Oct. 22, 2018):

This article examines the Wayfair case through the lens of substantive and enforcement jurisdiction and focuses on the question of whether there is a constitutionally required relationship between the nexus of the person that the state seeks to enlist as the tax collector and the underlying activity that the state is taxing.

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April 18, 2019 in Scholarship, Tax | Permalink | Comments (0)

Does Yale Law School’s Antidiscrimination Policy On Subsidies For Student Employment Discriminate On The Basis Of Religion?

Yale University LogoFollowing up on my previous post, Yale Law School Yanks Stipends From Students Who Work For Christian Firms:

Ilya Somin (George Mason), Does Yale Law School’s Antidiscrimination Policy on Subsidies for Student Employment Discriminate on the Basis of Religion?:

Yale Law School recently adopted a policy under which students cannot get school-subsidized grants to support public interest summer jobs, postgraduate fellowships, or targeted loan forgiveness for those working at relatively low-income jobs, if the job in question is with an employer that discriminates on the basis of race, religion, veteran status, marital status, veteran status, or — most controversially — sexual orientation. The policy change was in large part the result of student protests against a Federalist Society-sponsored speaker from the Alliance Defending Freedom, a Christian conservative public interest law firm that had successfully represented the plaintiff in the Masterpiece Cakeshop case.  The owner of the bakery argued that the state of Colorado violated his freedom of speech and freedom of religion by requiring him to bake a cake for a same-sex wedding to which he objected on religious grounds.

In the aftermath of the policy shift, many on the right charged that it amounts to religious discrimination against theologically conservative Christian employers who refuse to hire gays and lesbians because homosexuality conflicts with their religious commitments. In a letter to Yale Law School Dean Heather Gerken, Republican Senator Ted Cruz claimed that the policy violates federal civil rights laws banning discrimination on the basis of religion, and announced his intention to have the Senate Judiciary Committee hold an investigation of the policy. Dean Gerken has issued a public statement denying Cruz’s claims. Ironically, this is a case where supposedly pro-free market conservatives want to impose tighter regulations on a private organization, while the left — which normally favors expansive antidiscrimination laws – is defending Yale’s freedom of association.

Who has the right of this dispute? When it comes to religious discrimination, Gerken is correct, and her critics on the right are wrong. But these sorts of antidiscrimination policies do raise other difficult questions. ...

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April 18, 2019 in Legal Education | Permalink | Comments (3)

The Hidden Tax Policies Behind States’ Long‐Run Fiscal Crises

Jeremy Pilaar (Yale), Starving the Statehouse: The Hidden Tax Policies Behind States’ Long‐Run Fiscal Crises, 37 Yale L. & Pol'y Rev. 345 (2018):

American states have underinvested in infrastructure, education, and public welfare for decades. While the growing costs of certain state programs have accounted for part of the problem, stagnant and more volatile tax levies have also contributed to the lack of funds for public services. Surprisingly, however, scholars have devoted little attention to the latter problem. This Note begins to fill that void by proposing a new research agenda.

April 18, 2019 in Scholarship, Tax | Permalink | Comments (0)