Paul L. Caron
Dean




Monday, May 23, 2022

Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(k) Participants

Edward Zelinsky (Cardozo), Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments to 401(k) Participants, 54 Conn. L. Rev. 509 (2022):

Whether 401(k) plans’ investment menus should feature “alternative” investments is a fact-driven inquiry applying ERISA’s fiduciary standards of prudence, loyalty, and diversification. Central to this fact-driven inquiry is whether the alternative investment class in question is broadly accepted by investors in general and by professional defined benefit trustees in particular. A similarly salient concern when making this inquiry is the financial unsophistication of many, perhaps most, 401(k) participants. Accounting for these considerations, this Article concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but that cryptocurrencies (including Bitcoin), art, and environmental-social-governance (ESG) funds cannot. These latter investment categories have yet to achieve acceptance among professional defined benefit trustees and thus are not yet prudent to offer to 401(k) participants—if they ever will be. 

This Article explores each of these five categories as a class. Even if 401(k) participants should be offered choices within any (or all) of these classes of alternative investments, particular investments within each class must still be scrutinized individually for their compliance with ERISA’s fiduciary standards. The threshold, fact-intensive question that this Article addresses is whether, before considering specific investments, any generic category of alternative investments ought to be considered for the menu of choices offered to 401(k) participants. 

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

Legal Ed News Roundup

GAO: Lack Of Data Limits Research On Tax Equity

GAO, Tax Equity: Lack of Data Limits Ability to Analyze Effects of Tax Policies on Households by Demographic Characteristics:

GAO (2022)The U.S. has a large and increasing gap in income and wealth by race, ethnicity, and sex. However, little is known about the effects of tax policies across demographic characteristics. The tax code does not tax individuals differentially based on certain demographics. However, some researchers have noted how it could result in potential unintended disparate tax outcomes. 

The CARES Act includes a provision for GAO to report on its ongoing COVID-19 monitoring and oversight efforts. GAO was also asked to review how selected tax policies affected households by race, ethnicity, and sex as part of this oversight.

This report (1) examines approaches for analyzing the effect of tax policies, including some in the CARES Act and related legislation, on households by race, ethnicity, and sex, and (2) estimates how households use selected tax provisions by race, ethnicity, and sex. 

May 23, 2022 in Gov't Reports, IRS News, Tax | Permalink

Dan Markel's Murder: Will The Jury Convict Katie Magbanua? Why Did Charlie Adelson Change Lawyers?

David Lat (Original Jurisdiction), The Dan Markel Case: Opening Statements:

Magnauba (2021)I listened to the opening statements. And if you, like me, are hoping for a conviction of Katie Magbanua this time around, you should be worried—very worried.

The prosecution did a solid job. This time around, assistant state attorney Sarah Dugan delivered the opening statement, instead of chief assistant state attorney Georgia Cappleman (who has been the lead prosecutor on the case for years, and who delivered the opening in 2019). Dugan outlined the case against Magbanua methodically, thoroughly, and persuasively. Perhaps Dugan could have delivered her opening argument with more emotion, but I appreciated her sober delivery and focus on the evidence. She did well.

Tara Kawass, who along with co-counsel Christopher DeCoste represents Magbanua, gave a more animated opening—and a very strong one, I must admit. As her opening made clear, the defense is going to be more aggressive this time around—and it just might work. ...

This time around, Katie Magbanua’s lawyers have an alternative theory of the case. In her opening, Tara Kawass conceded two important points to the prosecution: yes, the two hitmen, Sigfredo Garcia and Luis Rivera, actually committed the murder of Dan Markel, and yes, they were hired by Charlie Adelson. In fact, throughout her opening, Kawass attacked Charlie, blaming him for the murder and calling him a “master manipulator” who mistreated Katie during their relationship—like he mistreated so many other people in his life.

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

ABA Council Votes 20-1 To Advance Proposal Permitting Law Schools To Go Test Optional. What Are The Implications Of Admitting Students Who Don't Take The LSAT Or GRE?

Following up on my previous post, NY Times: ABA May Eliminate Standardized Tests For Law School Admissions:  Wall Street Journal, No LSAT Required? Law School Admissions Tests Could Be Optional Under New Proposal:

ABA Legal Ed (2021)For decades, budding law students have had to stare down the Law School Admission Test, or LSAT, a rigorous test of abilities in logic, analytical reasoning and reading comprehension.

Those days might be coming to an end.

An American Bar Association panel that accredits law schools issued a proposal Friday to make standardized tests optional for admission, a move that would follow a trend seen in undergraduate admissions offices and give schools more flexibility in how they select law students.

The accrediting council voted overwhelmingly to seek public comment on the proposal, which would eliminate the mandatory use of tests such as the LSAT or the GRE, which has been allowed at some schools in recent years.

Only one person on the 21-member body voted against advancing the proposal.

Any final approval of the policy change would likely be many months away—at the earliest, affecting students who enroll in the fall of 2023. ...

The vote followed a recommendation from an ABA committee last month that called for eliminating the mandate that every law school require applicants to take a “valid and reliable” exam.

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

Lesson From The Tax Court: Counting The Days

Most people know that the IRS generally has three years to audit a return. Calculating the proper three-year period, however, requires close attention to both the start date and the end date.  You need to count those days properly.  I tried to drill into my students the practice of always consulting a calendar when attempting to calculate the proper dates.  Christian Renee Evert v. Commissioner, T.C. Memo. 2022-48 (May 9, 2022) (Judge Marshall), reinforces that teaching: to calculate the period in which the IRS can assess a tax, you need to properly count the days in the three year period.

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May 23, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

TaxProf Blog Weekend Roundup

Sunday, May 22, 2022

NY Times Op-Ed: We’re In A Loneliness Crisis — Another Reason To Get Off Our Phones

New York Times Op-Ed:  We’re in a Loneliness Crisis: Another Reason to Get Off Our Phones, 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 3It rained one morning this week. I moved back to Texas last year, in part for the rainstorms. Here, it rains decisively, gloriously, like it really means it. It explodes, pounds, roars, thunders and then, suddenly, moves on. I stepped on my back porch, not wanting to miss the show.

I sat, silent, smelling that indescribable rain scent and stretching out my hands, palms open in supplication, the same position I use in church to receive communion. The physicality of the experience, the sensual joy of sounds, smells, touch and sight, was profoundly humanizing. In a very real way, I am made for that. I am made to notice the rain. I’m made to love it.

We are creatures made to encounter beauty and goodness in the material world.

But digitization is changing our relationship with materiality — both the world of nature and of human relationships. We are trained through technology (and technology corporations) to spend more time on screens and less time noticing and interacting with this touchable, smellable, feelable world. Social media in particular trains us to notice that which is large, loud, urgent, trending and distant, and to therefore miss the small, quiet importance of our proximate and limited, embodied lives.

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May 22, 2022 in Faith, Legal Education | Permalink

Christianity And Constitutional Law

Nicholas Aroney (TC Beirne School of Law, University of Queensland; Google Scholar), Christianity and Constitutional Law:

Christianity and ConstitutionalismThis paper, written for the forthcoming Oxford Handbook on Christianity and Law, edited by John Witte and Rafael Domingo, explores the influence of Christianity on constitutional law. The paper begins by pointing out that modern constitutional law is the product of several important historical influences. These include elements of Greek philosophy, Roman law, Christian theology, and Enlightenment principles. Greek philosophy proposed a classification of the basic types of constitution and introduced the idea of the rule of law. Roman law contributed the legal concept of jurisdiction, which is an essential feature of contemporary constitutional law. Christian theology offered a conceptual framework in which the authority of civil government was effectively qualified by a higher natural or divine law, and in which the spiritual authority of the church posed a practical limit on the temporal powers of the civil authority. Christian theology also provided the context in which the powers of civil and ecclesiastical rulers were tempered through various means, including the administration of oaths of office and the issuing of charters guaranteeing the rights of religious, social, economic, and civil associations of many kinds. The principle of the separation of powers and the establishment of written constitutions enforced by judicial review, although associated with the Enlightenment, also owed a great deal to these earlier principles and practices. The paper surveys the contribution of each of these influences and argues that although the Greek, Roman, and Enlightenment contributions have been important, constitutional law would not be what it is today if it were not for the influence of Christianity.

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May 22, 2022 in Book Club, Faith, Legal Education, Scholarship | Permalink

Tax Experts Say Section 107 Housing Allowance For Clergy Remains Safe Despite Recent Cases And Greedy Abuses

Christianity Today, Churches Still Depend on Clergy Housing Allowance:

Despite recent legal cases and reports of greedy abuses, experts say the longstanding benefit remains safe.

Wth the federal tax filing deadline looming, a Virginia court case may have some ministers wondering whether their ministerial housing allowance is secure.

The case isn’t about the housing allowance. But to some, including Supreme Court Justice Neil Gorsuch, it suggests courts may be willing to meddle increasingly in clergy affairs, including housing.

At issue was denial of a property tax exemption for a church parsonage in Fredericksburg, Virginia. New Life in Christ Church sought the tax exemption for a church-owned home inhabited by two youth ministers, married couple Josh and Anacari Storms. The city denied the exemption because it claimed the church’s denomination, the Presbyterian Church in America (PCA), does not allow women to be considered ministers.

New Life in Christ said the city misunderstood its doctrine. Ordination and certain duties, like preaching, are limited to men in the PCA, according to the church, but the denomination’s governing documents permit congregations latitude in hiring nonordained persons like the Stormses for various ministry jobs. Yet a trial court sided with Fredericksburg, as did the Virginia Supreme Court.

The US Supreme Court declined to hear the church’s appeal in January. Now the church must continue paying the annual property tax bill of $4,589.15. The Supreme Court’s action provoked a dissent from Gorsuch.

“The City continues to insist that a church’s religious rules are ‘subject to verification’ by government officials,” Gorsuch wrote. “I would grant the [church’s] petition and summarily reverse. The First Amendment does not permit bureaucrats or judges to ‘subject’ religious beliefs ‘to verification.’”

Is the case a harbinger of increased willingness to scrutinize ministerial housing in court? Pastors across America hope not. While fewer churches own traditional parsonages, the majority take advantage of the federal clergy housing allowance and say it benefits both their families and their churches. ...

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May 22, 2022 in Faith, New Cases, Tax, Tax News | 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 #5:

  1. SSRN Logo (2018) [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)
  2. [397 Downloads]  Taxing Robots, by Rita de la Feria (Leeds; Google Scholar) & Maria Amparo Grau Ruiz (Universidad Complutense de Madrid; Google Scholar)
  3. [370 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)
  4. [358 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)
  5. [320 Downloads]  Where Nonprofits Incorporate and Why It Matters, by Peter Molk (Florida; Google Scholar)

May 22, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, May 21, 2022

This Week's Ten Most Popular TaxProf Blog Posts

The Data-Driven Answer To A Rich And Happy Life

New York Times Op-Ed:  The Rich Are Not Who We Think They Are. And Happiness Is Not What We Think It Is, Either., by Seth Stephens-Davidowitz (Author, Don't Trust Your Gut: Using Data to Get What You Really Want in Life (2022)):

Don't Trust Your GutWe now know who is rich in America. And it’s not who you might have guessed.

A groundbreaking 2019 study by four economists, “Capitalists in the Twenty-First Century,” analyzed de-identified data of the complete universe of American taxpayers to determine who dominated the top 0.1 percent of earners.

The study didn’t tell us about the small number of well-known tech and shopping billionaires but instead about the more than 140,000 Americans who earn more than $1.58 million per year. The researchers found that the typical rich American is, in their words, the owner of a “regional business,” such as an “auto dealer” or a “beverage distributor.” ...

What are the lessons from the data on rich earners?

First, rich people own. Among members of the top 0.1 percent, the researchers found, about three times as many make the majority of their income from owning a business as from being paid a wage. Salaries don’t make people rich nearly as often as equity does. ...

Second, rich people tend to own unsexy businesses. ...

The third important factor in gaining wealth is some way to avoid ruthless price competition, to build a local monopoly. The prevalence of owners of auto dealerships among the top 0.1 percent gives a clue to what it takes to get rich. ...

If pop culture is right, getting rich is a path to happiness. Is that true? Does money actually make people happy?

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May 21, 2022 in Book Club, Legal Education | Permalink

GAO: IRS Audit Rates Plummet For The Rich

GAO, Tax Compliance: IRS Audit Trends for Individual Taxpayers Vary by Income:

From tax years 2010 to 2019, audit rates of individual tax returns decreased for all income levels. On average, individual tax returns were audited over three times more often for tax year 2010 (about 0.9 percent) than for tax year 2019 (0.25 percent). Audit rates for taxpayers with incomes of $200,000 and above decreased the most, largely because higher-income audits tend to be more complicated and require auditors to manually review multiple issues, according to IRS officials. Because audit staffing has decreased, IRS cannot conduct as many of these audits, compared to lower-income audits, which are generally less complex and involve more automated processes. In addition, IRS officials stated that the number of returns filed by higher-income populations is growing, meaning more audits are needed to achieve the same audit rate.

Although audit rates decreased the most for higher-income taxpayers during this time period, IRS continued to audit higher-income taxpayers at higher rates than lower-income taxpayers, in general. However, IRS audited taxpayers claiming the Earned Income Tax Credit (EITC) at a higher rate than average (see fig. 1, using tax year 2019 as an example). IRS officials explained that EITC audits are limited in scope and historically have high rates of improper payments and therefore require a greater enforcement presence.

GAO 2

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May 21, 2022 in Tax, Tax News | Permalink

The Retrial Of Katherine Magbanua In Dan Markel's Murder: Luis Rivera Flips On Katie And Sigfredo Garcia

Friday, May 20, 2022

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

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 tax workshopsTax 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