José M. Gabilondo (Florida-International)

• B.A. 1987, Harvard
• J.D. 1991, Boalt Hall

         

 

It all started with the tax benefit rule in Bobbie Barton’s “baby tax” when I was a 2L at Boalt. She asked about a deduction, and I said “but what about the tax benefit rule?” Brightening, Bobbie said, “What a wonderful answer!” It was my first experience with synthesizing code provisions and the first time a teacher complimented me about something that I had said, so that was all the encouragement I needed. Then a smaller group of us took corporate and partnership tax. She covered the C, S, and K and reorgs in just 4 credits using this terrific CCH book that she did with her tax mentor, Adrian Kragen. (Now as a teacher, I find that amazing.) Each day she would peel off her driving gloves (she was a class act), figure out where our understanding of a case or statute was, and move us along, gently but rigorously. Bobbie was the second woman to get tenure at Boalt (after Herma Hill Kay) and whatever I become as a teacher, I owe to her talent and kindness.

Although I had been a sociology undergraduate, it was tax that introduced me to seeing the world in economic terms, starting with the Haig-Simon definition of economic income. That approach stuck. I practiced tax only in my first job – at a boutique firm run by my estates and trusts professor, Jerry Witherspoon – which funded pro bono services to people with HIV through tax and conservatorship work. After teaching comparative law in Barcelona for two years, I spent the next eight years in Washington as an attorney at the Securities and Exchange Commission, the World Bank, and the Department of the Treasury (in Banking and Finance). I loved Treasury because there even (we) Democrats were fiscal conservatives. It wasn’t tax, but it came out of the economic perspectives learned in tax and deepened in other courses. When I started teaching at Albany Law School, they asked me to teach con law but obliged my preference for tax instead, something for which I am grateful.

I teach to the whole class but look out for those who might “find themselves” in tax. They’re out there. You can only teach what you know, and that was my experience. Using Burke and Friel, I spend at least the first week in intro tax on the “big picture” to give them a sense of tax’s coherent deep structure and how it really does all fit together. Last year, I began using a tax history timeline to plot tax law against U.S. fiscal history (including GDP and public debt) to drive home that this is all about funding the government. (Maybe it’s a generational thing, but they don’t seem to appreciate or identify with the fisc the way I do.) My single favorite thing in the intro course is § 7872, which I (cruelly) do in the income section because the tax treatment of below-market loans opens up so much, especially the difference between tax effects and cash flow. I harp on basis, repeating (after the proper cultural disclaimers) that “You can never be too rich, too thin, too tanned [sic], or have too much basis.” And I love the story of tax martyr Beulah Crane, who paid tax so that others wouldn’t. (I used to think that “What is income?” was the big question, but now I’m gravitating more to “when?”) I use Jeff Kwall’s great book for corporate and partnership tax and I sequence the course by entity (C, K, and then S), not function. Here too, I use schematics for each entity to suggest “statutory paths” along which each provision must be construed.

I love teaching tax and hope that I always get to do it. Debt finance is my primary area of scholarship because it lets me explore problems from practice. My father left Spain during their Civil War and then Cuba after the Cuban Revolution. I was born in Cuba, so a secondary scholarly and service interest is Cuban legal studies, especially in banking and finance. My third scholarly interest is heterosexuality studies which I don’t use much in tax, although I do joke about the straight debt safe harbor in the S.

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