Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I

Abraham Sutherland (Virginia; Google Scholar), Congress Takes Its War on Cash to Digital Assets: Understanding Tax Code Section 6050I:

The United States government really does not like Americans to make large cash transactions. Now, due to a new law, it really, really does not want Americans to use “digital assets,” either. My goal is to convince you that the first claim is true. The second claim will then be self-evident.

Of course, no one cares about cash anymore, except criminals. We’ve always known something better: bank accounts, paper checks, and wire transfers. Cash has been obsolete for meaningful commerce for a long time, and since 1984 we’ve had a law in place to make sure it stays that way. Cash, as a tool for large, non-criminal transactions in the modern economy, is dead. Cash is a relic.

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George Washington Refuses To Fire Justice Thomas, Who Has Co-Taught A Course For A Decade; His Views 'Do Not Represent Those Of The University Or Its Law School'

George Washington Hatchet, Supreme Court Justice to Remain at GW Law After Thousands Call For His Removal:

Officials announced GW Law will not fire Supreme Court Justice Clarence Thomas after more than 6,000 people signed a petition calling for his termination after he voted to overturn Roe v. Wade and end federal abortion protections.

Provost Christopher Bracey and GW Law Dean Dayna Bowen Matthew said in an email Tuesday that employing Thomas will allow students to exchange ideas and that debate is essential to the University’s educational mission to train students to address the world’s problems. Rising junior Jon Kay started a petition calling on officials to remove Thomas from his teaching role at GW on Sunday, and it has since amassed more than 6,000 signatures.

“Because debate is an essential part of our University’s academic and educational mission to train future leaders who are prepared to address the world’s most urgent problems, the University will neither terminate Justice Thomas’ employment nor cancel his class,” Bracey and Matthew said in the email.

Thomas has lectured at GW Law since 2011, co-teaching a constitutional law seminar with his former clerk Gregory Maggs, and is set to teach that course again in the Fall 2022 semester, according to GW Law’s course catalog. ...

The email states while Thomas’ views “do not represent” the views of GW Law or the University as a whole, Thomas has “academic freedom and freedom of expression and inquiry” like all other faculty members. GW’s academic freedom guidelines, which officials quoted in the email, state it is not the University’s responsibility to “shield” individuals from opinions they may find offensive.

Christopher Alan Bracey (Provost) & Dayna Bowen Matthew (Dean), Email:

Dear Members of the George Washington University Community,

Since the recent U.S. Supreme Court ruling to overturn Roe v. Wade, we have heard from members of our community who have expressed feelings of deep disagreement with this decision.

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NY Times: 300,000 High Income Residents Fled New York City During The Pandemic

New York Times, The Flight of New York City’s Wealthy Was a Once-in-a-Century Shock:

When roughly 300,000 New York City residents left during the early part of the pandemic, officials described the exodus as a once-in-a-century shock to the city’s population.

Now, new data from the Internal Revenue Service shows that the residents who moved to other states by the time they filed their 2019 taxes collectively reported $21 billion in total income, substantially more than those who departed in any prior year on record. The IRS said the data captured filings received in 2020 and as late as July 2021.

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Supreme Court Refuses To Consider Race, Sex Bias Claims Against NYU Law Review

Following up on my previous post, Lawsuits Against Harvard, NYU Law Reviews Claim Racial, Gender Preferences:  Law.com, Justices Won't Consider Race, Sex Bias Claims Against NYU Law Review:

The U.S. Supreme Court on Monday turned away a sex and race discrimination challenge to the way in which New York University’s law review selects articles.

The justices denied review without comment in the petition, Faculty, Alumni and Students Opposed to Racial Preferences v. New York University.

The petition was filed by conservative litigator Jonathan Mitchell of Austin, Texas, known as the author of the Texas law banning abortion after six weeks of pregnancy and requiring enforcement of the law by private citizens.

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QOZs Illustrate How Critical Tax Theory May Bolster Tax Policy Analysis

Islame Hosny (Pryor Cashman, New York), QOZs Illustrate How Critical Tax Theory May Bolster Tax Policy Analysis, Yale J. on Reg.: Notice & Comment (June 25, 2022):

June 30, 2022, is the last day on which certain taxpayers who had capital gains in 2021 can defer paying tax on those gains until 2026 by investing them in Qualified Opportunity Funds (QOFs)—investment vehicles used to invest in Qualified Opportunity Zones (QOZs). According to the IRS, the purpose of the QOZ program is to “spur economic development and job creation in distressed communities by providing tax benefits to investors.”

One such tax benefit is that an investor who holds a QOF investment for 10 years receives a 100% exclusion from federal tax on appreciation on the investment. That is a 0% effective tax rate on a potentially unlimited amount of gain. But how does the 0% tax rate compare to that of a QOZ resident?

Today, there are 8,764 QOZs in the United States. One of those QOZs is Central Harlem, where 29% of residents are below the federal poverty level, 77.2% of households do not include children, and the median household income is $57,720. The federal income tax liability for a single filer with no children, with income of $57,720, and who takes the standard deduction ($12,550) and, thus, has taxable income of $45,170, is $5,687. This results in an effective federal tax rate of 12.59% for a typical resident in Central Harlem. ...

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2021-22 LSAT Registrants Down 21%; 33% Drop In June 2022 LSAT-Takers

Law.com, LSAT Test Takers Down Approximately 21% for 2021-22 Cycle:

The 2021-22 cycle of Law School Admission Test administrations concluded with the June test, and shows that the number of people who registered to take the LSAT is down more than 21% compared with the previous cycle. ... [LSAC's] most recent figures show an 11.2% year-over-year decline in applicants and a 10.3% decline in applications.

Dave Killoran, CEO of PowerScore, and Spivey Consulting both tweeted last week that 15,500 took the June LSAT.

Spivey Consulting posted on Twitter that June 2022 registrants were down 23% as compared with June 2021, “but final test-takers ended up being down 33% (lots of no-shows).”

Killoran posted that “[l]ast June there were 23,085 LSAT takers. This June there were about 15,500. That’s a drop of about 1/3 from test to test. Great news if you are applying to law school this coming Fall!” ...

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Job Opportunities In The U.S. Treasury Department's Office Of Tax Policy ($126,233 - $176,300)

Following up on last week's post: Job Opportunities in the Office of Tax Policy:

The Office of Tax Policy is looking to hire attorney-advisors in the Office of Tax Legislative Counsel (TLC), the Office of International Tax Counsel (ITC), and the Office of Benefits Tax Counsel (BTC), as well as a Deputy International Tax Counsel for Treaty Affairs.  Our offices place a high value on diversity of experiences and perspectives and encourages applications from individuals from all ethnic and racial backgrounds, veterans, LGBTQ+ individuals, and persons with disabilities.

TLC is staffed by fewer than 20 lawyers and other advisors with specific subject matter expertise covering the spectrum of the U.S. domestic tax system, other than employee benefits and employment tax related tax matters.  Attorney-advisors in the office shape policy and legal interpretations of the tax law through their work on regulatory and other administrative guidance projects and by providing technical assistance to congressional staff in drafting tax legislation.  TLC is seeking attorneys with at least seven years of legal experience and significant experience in one of the following subject matter areas: taxation of individuals, estates, and trusts under federal income and transfer tax rules; rules related to charities and other exempt organizations, as well as state, local, or Indian tribal governments; taxation of partnerships, S corporations, or other pass-through business entities and their owners; and/or energy tax rules, especially with respect to renewable energy incentives.

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USC Is Sixth School To Offer Undergraduate Degree In Law

Reuters, Law Schools Are Offering Undergrad Degrees in Emerging Legal Education Trend:

Undergraduate degrees are catching on at U.S. law schools as universities seek new ways to give students a head start on legal careers and help them better understand the role of law in society.

The University of Southern California Gould School of Law said Tuesday that it will offer a Bachelor of Science in legal studies — making it at least the third law school in the country to grant degrees to undergraduate students and the first to do so among U.S. News & World Report’s top 20 highest rated schools.

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SSRN Tax Professor Rankings

SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through June 1, 2022) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

		All-Time			Recent
1	Reuven Avi-Yonah (Michigan)	209,682	1	Reuven Avi-Yonah (Michigan)	9,738
2	Daniel Hemel (NYU)	125,718	2	Daniel Hemel (NYU)	5,526
3	Dan Shaviro (NYU)	124,944	3	Bridget Crawford (Pace)	4,157
4	Lily Batchelder (NYU)	124,498	4	Edward McCaffery (USC)	3,462
5	David Gamage (Indiana-Bloom.)	121,781	5	D. Dharmapala (Chicago)	2,931
6	Darien Shanske (UC-Davis)	114,774	6	Zachary Liscow (Yale)	2,898
7	David Kamin (NYU)	112,036	7	Lily Batchelder (NYU)	2,869
8	Cliff Fleming (BYU)	107,028	8	Ruth Mason (Virginia)	2,804
9	Manoj Viswanathan (UC-Hastings)	103,776	9	David Gamage (Indiana-Bloom.)	2,754
10	Rebecca Kysar (Fordham)	102,888	10	Darien Shanske (UC-Davis)	2,639
11	Ari Glogower (Ohio State)	102,674	11	Robert Sitkoff (Harvard)	2,637
12	D. Dharmapala (Chicago)	47,503	12	Kim Clausing (UCLA)	2,599
13	Michael Simkovic (USC)	46,794	13	David Kamin (NYU)	2,571
14	Paul Caron (Pepperdine)	39,579	14	Richard Ainsworth (Boston Univ.)	2,524
15	Louis Kaplow (Harvard)	37,015	15	Kyle Rozema (Washington University)	2,193
16	Richard Ainsworth (Boston Univ.)	35,171	16	Dan Shaviro (NYU)	2,040
17	Bridget Crawford (Pace)	32,107	17	Margaret Ryznar (Indiana-Indy)	1,983
18	Robert Sitkoff (Harvard)	29,200	18	Ari Glogower (Ohio State)	1,828
19	Ed Kleinbard (USC)	28,593	19	Louis Kaplow (Harvard)	1,797
20	Vic Fleischer (UC-Irvine)	28,508	20	Brad Borden (Brooklyn)	1,718
21	Brad Borden (Brooklyn)	28,126	21	Francine Lipman (UNLV)	1,630
22	Jim Hines (Michigan)	26,637	22	Hugh Ault (Boston College)	1,579
23	Ruth Mason (Virginia)	26,433	22	Vic Fleischer (UC-Irvine)	1,536
24	Ted Seto (Loyola-L.A.)	25,596	24	Yariv Brauner (Florida)	1,521
25	Katie Pratt (Loyola-L.A.)	25,472	25	Gregg Polsky (Georgia)	1,466

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CUNY Group Files ABA Complaint Over Law School Faculty's Unanimous Adoption Of BDS Resolution Against Israel

Yesterday, Students and Faculty for Equality at CUNY (S.A.F.E. CYNY) filed a complaint with the ABA Council on Legal Education alleging that the CUNY Law School faculty's unanimous adoption of a Boycott, Divestment, Sanctions resolution against Israel is discriminatory, infringes upon academic freedom, and violates accreditation standards 105 (Acquiescence For Substantive Change in Program or Structure), 205 (Non-Discrimination and Equality of Opportunity), 206 (Diversity and Inclusion), and 405 (Professional Environment):

We write on behalf of Jewish Zionists, Israelis, and other students and faculty members across the City University of New York (CUNY), including at CUNY School of Law ("CUNY Law"), who are deeply concerned with the law school's recent unanimous faculty adoption of a formal BDS policy that vulgarly and blatantly discriminates against students, prospective students, faculty and employees, and prospective faculty and employees on the basis of ethnicity, religion, and nationality. We believe that the adopted BDS policy also violates well-established principles of academic freedom. As detailed below, we submit that CUNY School of Law's newly adopted BDS policy is discriminatory and blatantly flouts the accreditation requirements set forth in the ABA Standards for Approval of Law Schools. We urge the ABA Council on Legal Education (the "Council") to take immediate action to bring the law school into compliance or to revoke its accreditation. ...

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Shaviro: Stanley Surrey And The Public Intellectual Practice Of Tax Policy

Following up on my previous post, 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) (reviewed by Tracey Roberts (Cumberland; Google Scholar) here): Daniel Shaviro (NYU), 'Moralist' Versus 'Scientist': Stanley Surrey and the Public Intellectual Practice of Tax Policy:

Nearly forty years after his untimely death, Stanley Surrey, the renowned Harvard law professor (and Treasury official), remains perhaps the most important and influential tax law scholar in American history. The recent publication of his highly illuminating memoirs offers a convenient occasion for reassessing his work.

In offering such a reassessment, this essay takes its title from William F. Buckley’s 1974 observation that, while Surrey claimed to analyze tax policy issues with “scientific detachment,” in fact he was a tax “moralist,” whose policy recommendations were “based on a highly articulated set of personal value principles.” Largely agreeing with Buckley as a descriptive matter, the essay considers what Surrey’s work both gained and lost intellectually by hewing so strongly to a set of career-long, deeply held beliefs. Along the way, the essay contrasts Surrey’s moral and intellectual certainty with the skepticism and resistance to grand system-building of Boris Bittker of Yale Law School, Surrey’s only mid-century rival for intellectual leadership of the tax legal academy. ...

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Legal Ed News Roundup

• ABA Journal Op-Ed (John Villasenor, (UCLA)), Why Law Professors Should Co-author Academic Articles With Law Students
• ABA Journal, Think You Won't Pass the July Bar Exam? So Did Many Others, But They Did, Say Lawyers
• Boston Globe, Black Women Law Deans and Professors Sound Off on What Overturning the Constitutionally Protected Right to Abortion Means
• CNBC, Rutgers Law School Co-Dean: Roe v. Wade Decision Appears As 'Disastrous' As We Expected
• David Faigman (Chancellor & Dean, UC-Hastings), Roe v. Wade
• The Hill Op-Ed (Helen Alvaré (Associate Dean, George Mason), Dobbs Decision Shows U.S. Can Be Both Powerful and Humane
• KTLA, Loyola Law School’s Jessica Levinson Explains Legal Impact of Roe v. Wade Reversal

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ProPublica: Ten Ways Billionaires Avoid Taxes On An Epic Scale

ProPublica, Ten Ways Billionaires Avoid Taxes on an Epic Scale:

Last June, drawing on the largest trove of confidential American tax data that’s ever been obtained, ProPublica launched a series of stories documenting the key ways the ultrawealthy avoid taxes, strategies that are largely unavailable to most taxpayers. To mark the first anniversary of the launch, we decided to assemble a quick summary of the techniques — all of which can generate tax savings on a massive scale — revealed in the series.

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American Launches Title IX Investigation Of 8 Law Students Who Criticized A Student's Pro-Dobbs Views In Group Chat

Chronicle of Higher Education, A University Is Investigating 8 Law-School Students Who Criticized a Peer After ‘Roe’ Leak:

Eight law-school students at American University texted in a group chat, criticizing both a leaked Supreme Court draft opinion to overturn Roe v. Wade as well as people who backed the planned reversal of the landmark abortion ruling. Three weeks later, the students were notified they were being investigated for harassment.

On May 25, American’s Equity & Title IX Office sent an email to the students saying their messages might have violated the university’s Discrimination and Non-Title IX Sexual Misconduct policy. The Foundation for Individual Rights and Expression, known as FIRE, published the email on Friday with identifying information redacted [American University Launches Bogus Harassment Investigation Into Students Who Criticized Leaked Supreme Court Abortion Ruling in Private Group Chat] — the same day that the Supreme Court issued its anticipated ruling overturning Roe v. Wade.

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Lesson From The Tax Court: A Reasonable Basis For Deducting Scrubs?

My students—especially those with accounting backgrounds—come to class expecting that tax law is all about bright line rules and lots of calculations.  They are either disappointed, frustrated, or relieved to find that tax law is like other law: it’s words, words that are generally complex, often opaque, and frequently mysterious.  That’s why taxpayers need competent tax practitioners to advise them!

Some tax practitioners are more aggressive and some are more cautious.  Today’s lesson is for the more aggressive ones.  In Raul Romana and Maria Corazon Romana v. Commissioner, T.C. Sum. Op. 2022-9 (June 16, 2022), Judge Carluzzo generously allowed a taxpayer to deduct the cost of a her “scrublike clothing.”

Those of us who are more cautious will disregard this decision.  It’s an outlier and, no, I certainly would not advise my client to start deducting the cost of this type of clothing!  At the same time, however, the opinion may well provide aggressive taxpayers and their advisors protections from penalties if and when they try this trick at home.  The substantive tax lesson is short and sweet.  The penalty lesson is more complex, opaque, and mysterious.

Details below the fold.

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Florida Gov. DeSantis Signs Markel Act, Giving Grandparents Right To Visit Their Grandchildren Where Living Parent Killed Other Parent

Following up on my previous post:  Justice for Dan (Facebook, Twitter) Press Release, Gov. DeSantis Signs Bill on Grandparent Visitation, Inspired by Story of Dan Markel:

Florida Governor Ron DeSantis signed HB 1119, referred to by advocates as the ‘Markel Act’ — referring to the tragic 2014 murder-for-hire of FSU law professor Dan Markel who was locked in ongoing divorce disputes with his ex-wife, Wendi Adelson, the mother of his two sons. Specifically, just prior to the murder, Wendi had petitioned the court to relocate to Miami where her family was living, but was denied. After authorities implicated members of the Adelson family the murder, Wendi cut off contact between Markel’s parents and the children.

Even after Wendi, her mother, and her brother (now incarcerated) were named as “co-conspirators” in the crime, Florida law left no opening for Markel’s parents to seek visitation with the children. This prompted allies to seek changes to Florida law, to make it easier for grandparents in these situations to petition courts for visitation.

In order to ensure parental rights were protected, the bill language applies only to cases where the living parent was found responsible for the other parent’s death by a civil or criminal court. While this has not occurred in Markel’s case, the existence of this law may give living parents good reason to permit visitation with grandparents rather than enduring the ordeal of lawsuits. It may also lead others to avoid planning the murder of a co-parent altogether.

Statement from Ruth Markel on behalf of their family

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• 'I Couldn’t Imagine Leading And Not Being Openly Gay': How LGBTQIA+ Pride Informs Law School Leadership
• WSJ: Warren Buffett’s Estate Planning Sends Charities Scrambling; $100 Billion May Go To Pro-Abortion Family Foundation
• The Ohio State University Trademarks 'The'

Sunday:

• NY Times Op-Ed: I Prayed And Protested To End Roe. What Comes Next?
• They Cite the Same Bible And Evoke The Same Jesus. But These Two Christians Are On Opposite Sides Of The Abortion Debate
• NY Times Op-Ed: I Married The Wrong Person, And I’m So Glad I Did
• The Top Five New Tax Papers

NY Times Op-Ed: I Prayed And Protested To End Roe. What Comes Next?

New York Times Op-Ed:  I Prayed and Protested to End Roe. What Comes Next?, by Karen Swallow Prior (Southeastern Baptist Theological Seminary):

Roe v. Wade’s reversal has elicited cries of anger and despair from those who feel a sense of dread for the future of women and the future of America.

I understand that feeling of dread.

As a pro-life advocate, I lament with those who feel they have lost a basic human right, as well as moral agency and hope for the future. But for me it is Roe that brought these losses.

Roe stripped from the prenatal child the right to continue to live and grow, safe and free from intentional harm. If you believe, as I do, that abortion unjustly ends the life of a being that is fully human, a life that exists independently of the will of the mother, is self-organizing and unique, developing yet complete in itself, then you will understand Roe not as a ruling that liberates but as one that dehumanizes, first the fetus, then the rest of us.

Further, Roe elevated radical autonomy over moral agency. Roe struck down the hope that is inherent in every human life, whether new or old, for as long as life remains.

Roe was an unjust ruling. I have always believed it would be overturned, as other unjust decisions by the court were, although I thought it would take longer. I rejoice that it did not. But of course it will take longer for abortion to become unthinkable, which is the real goal of the pro-life movement. ...

[I]n a recent Times Opinion essay, Patrick T. Brown acknowledged the need for “a broader vision of policy than just prohibiting access to abortion.” A post-Roe world, he wrote, “is one that compels a greater claim on public resources to support expectant mothers” and demands that we “take seriously the challenges that women and families experience not only during and immediately after pregnancy but also in the years that follow.”

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They Cite the Same Bible And Evoke The Same Jesus. But These Two Christians Are On Opposite Sides Of The Abortion Debate

CNN, They Cite the Same Bible and Evoke the Same Jesus. But These Two Christians Are on Opposite Sides of the Abortion Debate:

Both cite the same Bible. Both follow the same Jesus. And both talk about the sanctity of life.

And yet both stand on opposite sides of the contentious debate over abortion.

Trent Horn, an author, speaker and podcaster, is a Roman Catholic and an opponent of abortion rights. Laura Ellis supports legal abortion rights and is project manager at Baptist Women in Ministry, a Baptist group that advocates for women in ministry.

Both personify the divisions over abortion in the church — and show how complex the issue can be when two smart and well-informed people cite scripture to support their point of view. ...

While much of the debate around abortion has been filtered through angry protests and shouted slogans, CNN chose to interview these two Christians because each has penned thoughtful public essays on the issue.

Horn, author of "Persuasive Pro-life," wrote a recent essay, "Catholics Can't Be Pro-Choice," in which he argued that all "reasonable" people should oppose legal abortion because it is the taking of a life. "If the unborn are not human beings, then abortion is harmless surgery. But if the unborn are growing, they must be alive," he wrote.

Ellis is author of a recent essay, "Why I'm a pro-choice Christian and believe you should be too." One of her biggest criticisms of abortion rights opponents is that "often these activists fail to support other political causes that preserve the life of the child after being born."

We asked both Ellis and Horn the same four questions and received dramatically different responses. Their answers were edited for brevity.

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NY Times Op-Ed: I Married The Wrong Person, And I’m So Glad I Did

New York Times Op-Ed:  I Married the Wrong Person, and I’m So Glad I Did, 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)):

HI truly believe that everyone marries the wrong person. But even by that standard, my husband’s and my match was particularly fraught. We got married young with no idea what we were getting into or how to decide who — or if — to marry. We both brought plenty of baggage into our relationship. We argued a lot, and didn’t handle conflict well. We had a vague sense that marriage was good and a mistaken idea that it was a necessary passage into adulthood. But even as I walked down the aisle, I harbored doubts about whether we should marry.

My husband is now also an Anglican priest and over the last two decades we’ve both presided over weddings and offered premarital counseling. We both admit that if a couple came to us with the doubts and issues we had when we got engaged we’d probably say, “maybe don’t do this,” which is what our premarital counselor told us at the time. He sensed that our life paths were pulling in different directions, that neither of us had a clear idea of who we were or what we wanted, and that I was romantically hung up on another guy. We didn’t listen to his advice.

Nearly two decades later, I’m glad we didn’t. But I can also say that he was right to warn us of trouble ahead.

The last 17 years have held long stretches when one or both of us were deeply unhappy. There have been times when contempt settled on our relationship, caked and hard as dried mud. We’ve both been unkind. We’ve both yelled curse words and stormed out the door. We both have felt we needed things that the other person simply could not give us. We have been to marriage counseling for long enough now that our favorite counselor feels like part of the family. We should probably include her photo in our annual Christmas card. At times, we stayed married sheerly as a matter of religious obedience and for the sake of our children. ...

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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 #1 paper and a new papers joining the list at #3:

1. [401 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
2. [289 Downloads]  Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, by Reuven Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Utah; Google Scholar; moving to Cardozo)
3. [224 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (International Bureau of Fiscal Documentation; Google Scholar)
4. [221 Downloads]  Designing an Equitable Border Carbon Adjustment Mechanism, by Ivan Ozai (Osgoode Hall; Google Scholar)
5. [207 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)

This Week's Ten Most Popular TaxProf Blog Posts

1. Bryan Camp (Texas Tech), Lesson From The Tax Court: How To Tell When Land Is Held As A Capital Asset
2. Houston Chronicle, Texas Southern Law School Replaces Dean After Less Than Three Years Amidst Continued Bar Challenges, Fallout From Admissions Scandal
3. Missoulian, After Failed Search Following Resignation Of Dean Due To Mishandling Of Sexual Misconduct Allegations, Tax Prof Elaine Gagliardi Named Interim Dean At Montana Law School
4. Chronicle of Higher Education, Faculty Salaries Fall 5%, The Biggest One-Year Drop In History
5. Kay Bell (Don't Mess With Taxes), Juneteenth And Tax Law
6. Vermont Digger, Rebranded Vermont Law & Graduate School Aims To Increase Enrollment By 100 Students With Three New Master’s Degree Programs
7. Leigh Osofsky (North Carolina) & Kathleen DeLaney Thomas (North Carolina), Implicit Legislative Bias: The Case Of The Mortgage Interest Deduction
8. John Lande (Missouri), How Introverted Law Students Can Thrive: Become Tax Lawyers|Tax Professors (And Deans)
9. Wall Street Journal, The New HOTTER Malibu
10. Mike Kerrigan (Hunton Andrews Kurth, Charlotte, NC), Father's Day And The Prodigal Son

'I Couldn’t Imagine Leading And Not Being Openly Gay': How LGBTQIA+ Pride Informs Law School Leadership

Law.com, 'I Couldn’t Imagine Leading and Not Being Openly Gay': How LGBTQIA+ Pride Informs Law School Leadership:

The decision to be open about one’s sexual orientation is deeply personal. But for many queer law deans, the decision’s potential impact on the people they lead is often a key part of the calculus.

“I feel it is important for me to be openly gay as a dean because representation matters,” Anthony Niedwiecki, president and dean of Mitchell Hamline School of Law, told Law.com.

“I’ve been given the gift of being able to be a dean, and I want to show other LGBTQ+ people that you can be your authentic self and still be in leadership positions,” Niedwiecki said. “I honestly believe I’m a much better leader because I’m openly gay and authentic. I couldn’t imagine leading and not being openly gay.”

“[A]s the first Black, female and gay law dean at Rutgers Law, I have an unwavering belief that representation matters,” Kimberly Mutcherson, dean and professor of law at Rutgers Law School in Camden told Law.com in an email, echoing Niedwiecki’s sentiment.

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WSJ: Warren Buffett’s Estate Planning Sends Charities Scrambling; $100 Billion May Go To Pro-Abortion Family Foundation

Wall Street Journal, Warren Buffett’s Estate Planning Sends Charities Scrambling:

Warren Buffett has long held his cards close to the vest when it comes to his investing plans. Now, charities including the Bill & Melinda Gates Foundation are racing to adjust to possible changes in his plans for charitable giving. The results could dramatically reshape the world of philanthropy.

In 2006, the Omaha billionaire made a pledge worth tens of billions of dollars: He would earmark 85% of his stock in his company, Berkshire Hathaway, for charity, with the bulk going to the Gates Foundation, a global philanthropy run by his longtime friends. He wrote to the couple that he was “irrevocably committing to make annual gifts of Berkshire Hathaway ‘B’ shares throughout my lifetime.”

Less clearly worded was what would happen to the undistributed shares after Mr. Buffett, who will turn 92 in August, dies.

For years, the Gates Foundation made preparations for that event. Staffers scrambled to find potential homes for an anticipated flood of funding, an endeavor they nicknamed “Project Lincoln,” former employees said. In 2010 Mr. Buffett said he planned ultimately to give away 99% of his wealth.

Now, similar preparations are under way at a different charity—a little-known Buffett family foundation that supports abortion rights. Officials at the Susan Thompson Buffett Foundation have been hiring staff and making plans to spend a massive influx of money that the small organization expects to receive, according to current and former people within the foundations and documents reviewed by The Wall Street Journal.

While Mr. Buffett hasn’t revealed publicly how his estate will be divided, officials at both foundations have discussed in internal meetings that the amount left to the Buffett family foundation could be as high as $70 billion to $100 billion, some of the people said and documents show. An endowment of that size would make the Buffett foundation one of the largest private philanthropies in the world, based on publicly available data.

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The Ohio State University Trademarks 'The'

After being scoffed by their Michigan rivals and others, The Ohio State University received trademark protection for the word "the" from the U.S. Patent and Trademark Office on Tuesday.  New York Times,  Ohio State University Trademarks ‘The’:

Ohio State University has received a trademark for one of the most common words in the English language, one that the school’s supporters often forcefully emphasize when uttering its name: “The.”

While athletes from other schools may simply say they went to Michigan or Penn State, a Buckeye rarely cuts corners: “The Ohio State University,” they’ll say, usually adding a dramatic pause after stressing the “the.” The school’s players, alumni and supporters often speak its name in that consistent cadence, as football fans who have watched N.F.L. starting lineups introduce themselves on Sundays or Monday nights have most likely heard

To Ohio State’s supporters, the tradition is cherished and sets the school apart from the rest. (To Ohio State’s rivals, it’s nauseatingly pompous. To each their own.)

The trademark, issued on Tuesday by the U.S. Patent and Trademark Office, won’t unleash heavy-handed lawyers in search of anyone using the word “the” — its protections are limited to a narrow set of circumstances that people are unlikely to cross unless they are selling knockoff Ohio State merchandise. But it gives the university some protection against unlicensed sellers, and adds to the school’s efforts to link itself to the very common word.

Ohio State Buckeyes Nike Youth Local T-Shirt - Scarlet  Source: Fanatics.com

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

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

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

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Weekly Legal Education Roundup

• Chronicle of Higher Education, Faculty-Pay Survey Records the Largest One-Year Drop Ever
• Houston Chronicle, TSU Replaces Law School Dean After Continued Troubles, Low Bar Scores
• John Lande (Missouri), Introversion, the Legal Profession, and Dispute Resolution
• Law360, Strong Rebound In Post-Pandemic Law School Graduate Hiring
• Law.com, So Far, Public Comments Largely Support ABA Proposal to Make Law School Admission Tests Optional
• Ruth Markel, The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life (2022)
• Missoulian, University of Montana Law School Names Interim Dean After Search Comes Up Short
• Roundup, Legal Ed News

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Tax Policy In The Biden Administration

• Bloomberg, SALT-Cap Issue Emerges as Potential Block to Biden Economic Bill
• Common Dreams, Progressives Say Windfall Profits Tax a 'Better Solution' Than Biden's Gas Tax Holiday
• Institute on Taxation & Economic Policy, Creating Racially and Economically Equitable Tax Policy in the South
• Los Angeles Times, Allegations of a Getty Family Tax Dodge
• Greg Mankiw (Harvard), Three Reasons Why a Gas Tax Holiday is a Bad Idea

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Strong Rebound In Post-Pandemic Law School Graduate Hiring

Law360, Law School Graduate Hiring Rebounds From Pandemic Slump:

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

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

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

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

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

Hemel: The Passthrough Entity Tax Scandal

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

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

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

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Surrey Workshop On Fairness In International Taxation

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

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

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

U.S. presenters include:

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

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

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

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

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Davis: Taxing Choices

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

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

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Inazu: Beyond Unreasonable

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Administering Taxes Democratically?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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ProPublica: The Tax Scam That Won’t Die

ProPublica, The Tax Scam That Won’t Die:

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

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

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

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

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

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

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

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

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

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

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

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

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

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Legal Ed News Roundup

• Above the Law, ABA Seeking Diversity & Inclusion Fellows
• Above the Law, A Surprisingly Small Amount Of This Top Law School's Alumni Are Actually Lawyers
• Above the Law, Did A Professor Just Leave A Top Law School And Refuse To Grade Exams On The Way Out?
• Above the Law, Ex-Law Student Loses Bid To Get Cyberstalking Sentence Overturned In Case Over T14 Law School Rejection
• Above the Law, How I Stopped Worrying And Learned To Love The Bar Exam
• Above the Law, Jonathan Turley Sums Up January 6 Hearings Like He Didn't Watch January 6 Hearings
• Above the Law, Oopsie! Top Law School Shares Student GPAs -- And More Sensitive Data -- With Student Body
• Above the Law, Transfer Law Students Have Numerous Advantages

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Tax Prof Debby Geier Retires After 33 Years At Cleveland State

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TaxProf Blog Holiday Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• How Introverted Law Students Can Thrive: Become Tax Lawyers|Tax Professors (And Deans)
• Katherine Magbanua To Be Sentenced in Dan Markel's Murder On July 29—Same Time, Day, And Courtroom As Charlie Adelson's Hearing; Will She Cut A Deal And Implicate Adelsons?
• 17th Annual Junior Tax Scholars Workshop Concludes Today At Illinois

Sunday:

• Father's Day And The Prodigal Son
• 'I Can Think Of No Better Father’s Day Gift' Than Passage Of Markel Act Giving Child Visitation Rights To Grandparents Of Deceased Parent
• Gallup: Belief In God Falls To All-Time Low In U.S.: 81%, Down 6 Percentage Points (12 Percentage Points Among Democrats)
• NY Times: State Judge Rules Yeshiva University Must Recognize LGBTQ Student Club
• The Top Five New Tax Papers

Juneteenth:

• Osofsky & Thomas: Implicit Legislative Bias — The Case Of The Mortgage Interest Deduction
• Juneteenth And Tax Law
• Are Legal Lessons Learned In The Trenches More Valuable Than Those Learned In Law School?
• Town And Gown, Malibu And Pepperdine