Sunday, February 28, 2010
The AALS has issued a Call for Proposals for a 2011 AALS Program on Lawyer and Law Student Happiness:
Beyond Humanizing: Can – and Should – Law Schools Strive to Graduate Happy Students?
Students often enter law school with goals of helping others, improving peoples’ lives, and making the world a better place. By the time they graduate, however, other considerations have supplanted students’ pro-social inclinations. Their aspirations succumb to more extrinsic values, such as prestige and money, and are often faced with the realities of time pressure and the dehumanizing effects of legal education. Despite the prestige associated with being an attorney, the profession is not ranked in the top ten for job satisfaction or happiness. In fact, one recent study revealed that a majority of practitioners would not recommend law to a young person.
Three AALS Sections, Balance in Legal Education, Academic Support, and Student Services will be hosting a program in which we explore the causes of lawyer distress, the role legal education plays in producing unhappy law students and lawyers, and the concrete steps law schools are currently taking or could take to combat those causes. The Program Committees invite proposals that provide concrete demonstrations of ways doctrinal, clinical, legal writing, and academic support professors and student services professionals are addressing these concerns.
- Mankiw: Spreading the Wealth Around: Reflections Inspired by Joe the Plumber
- Oddball Tax Deductions
- Former Maryland Dean Asked to Return $60k Paid for Summer Research; AG to Decide Propriety of $350k Paid for Untaken Sabbatical
- Taxation, Economic Efficiency, and the Dormant Commerce Clause in Davis
- The International and Comparative Tax War
- Hitler's Article Is Rejected by the Stanford Law Review
- Top 5 Tax Paper Downloads
- Today Is the Last Day to Make a Haiti Donation and Deduct It on Your 2009 Tax Return
- ABA Tax Section Submits Comment Letters
- NYSBA Tax Section Releases Tax Reports
2. [250 Downloads] Foreign Bank Accounts -- FBAR Reporting Obligations, Enforcement Exposures and Managing the Risk: What Every Tax and Compliance Advisor Needs to Know Now!, by Dean Kirk Marsan (former Senior Tax Counsel, Lehman Brothers)
4. [213 Downloads] Law Review Articles You Should've Read (But Probably Didn't) in 2009, by Bridget J. Crawford (Pace)
5. [207 Downloads] The Role of Physical Presence in the Taxation of Cross-Border Personal Services, by Michael S. Kirsch (Notre Dame)
The ABA Tax Section has submitted comment letters on:
- § 987 Foreign Currency Gains and Losses Proposed Regulations
- § 142(a)(6) Solid Waste Disposal Facilities Proposed Regulations
- § 104(a)(2) Exclusion for Physical Injuries or Sickness Proposed Regulations
Saturday, February 27, 2010
The New York State Bar Association Tax Section has issued tax reports on:
- New York State Budget Revenue Proposals (No. 1206)
- New York State Budget Proposal to Modify Taxation of Resident Trusts (No. 1205)
- Estimated Tax Consequences of Roth IRAs (No. 1204)
N. Gregory Mankiw (Harvard University, Department of Economics) gives the Presidential Address today at Eastern Economic Association's 36th Annual Conference in Philadelphia on Spreading the Wealth Around: Reflections Inspired by Joe the Plumber:
One of my favorite recent moments in political theater was when “Joe the Plumber” posed a question to candidate Barack Obama during the presidential campaign of 2008. As you may recall, Joe was an aspiring small business owner, and he asked then-Senator Obama about his proposal to raise taxes on high-income households. The candidate responded, in part, “It's not that I want to punish your success. I just want to make sure that everybody who is behind you, that they've got a chance at success, too…. I think when you spread the wealth around, it’s good for everybody.”
The reason I like this particular moment is that it focused public attention on one of the defining differences among competing economic philosophies. Indeed, I don’t think it is an exaggeration to say that the single most important difference between the political left and the political right is over the questions of whether, and to what extent, “spreading the wealth around” is a proper function of government.
Looking ahead, I fully expect the issue to remain at the center of political debate. One reason is that the tax cuts signed into law by President Bush in 2001 and 2003 will expire next year unless Congress takes action to extend them.
Another, perhaps more important, reason is that the U.S. federal government is running a large budget deficit and faces an ominous fiscal gap looming on the horizon. ...
In the end, I don’t think the Just Deserts Theory necessarily calls for radical changes in policy toward taxes and income distribution. It does, however, suggest that we focus on a different set of questions when thinking about policy design. A utilitarian asks how quickly marginal utility falls as income rises and how much people respond to the disincentive effects of redistributive tax policy. A Just Deserts Theorist admits that questions regarding utility functions and incentive effects may enter into the analysis, but they are the wrong place to start. Rather, he begins by asking whether people’s compensation reflects the contributions they make to society and how much they benefit from government actions.
There may be no way to decide which of these approaches to tax policy is right. The issue is not one of positive economics, so data alone cannot settle the matter. My guess is that people will have different moral intuitions about which approach makes more sense. I suspect that if we had the opportunity to ask them, Barack Obama and Joe the Plumber would reach different conclusions about this fundamental question.
Kiplinger, Oddball Tax Deductions:
[O]ver the years your fellow taxpayers have successfully claimed write-offs for many crazy things that most of us wouldn't even dream of taking. Here's our list of what we think are the strangest deductions allowed, ranging from cat food to a casualty loss for a vehicle totaled by a drunk driver.
Former Maryland Dean Asked to Return $60k Paid for Summer Research; AG to Decide Propriety of $350k Paid for Untaken Sabbatical
Following up on my post this week on the controversy surrounding a state audit report flagging "questionable compensation payments" to Maryland Dean Karen Rothenberg: university officials have asked Dean Rothenberg to return $60,000 paid as four summer research grants, and have asked the state attorney general whether the Dean can be asked to return $350,000 paid for for an untaken sabbatical leave:
- ABA Journal, Former Law Dean Who Made $787K Asked to Return $60K; Another $350K Questioned
- ABC News, Refund Forced From Former Law School Dean
- Above the Law, Former Maryland Law Dean Asked to Return ‘Questionable’ Compensation — But Will She?
- Baltimore Sun, Former UM Law Dean Is Asked to Refund $60,000; $410,000 in Questionable Payments Referred to State Attorney General's Office
- Baltimore Sun, Mega Payments to Administrators Saddle Students with Debt
- Baltimore Sun, Payments to Dean are Least of University's Questionable Fiscal Practices
- Baltimore Sun, UM Dean Profited While Students Faced Tuition Hikes
- Baltimore Sun, UM Law Student: Dean's Compensation Out of Line
- Business Insider, Overpaid Former Dean Told To Fork Over $60K
- Generation J.D., Another View of the Dean Rothenberg Situation…
- Nancy Rapoport (UNLV), The Former University of Maryland Law Dean's Current Troubles
- Larry Ribstein (Illinois), Executive Compensation of Law Deans
Casey J. Jennings (J.D. 2010, North Carolina) has published Recent Development, To Form a More Perfect Union: Taxation, Economic Efficiency, and the Dormant Commerce Clause in Department of Revenue v. Davis, 88 N.C. L. Rev. 311 (2009). Here is part of the Introduction:
In Part I, this Recent Development will detail the development of dormant Commerce Clause jurisprudence culminating with the expansion of the government function exception in United Haulers. Part I will further explain (1) that dormant Commerce Clause jurisprudence mandates that the Court inquire as to whether the differential tax treatment of bonds impairs national economic unity and efficiency under the Pike standard and (2) that the Davis Court failed to conduct the mandated analysis. In Part II, this Recent Development will conduct the Pike analysis that the Court failed to perform, weighing the local benefits of the Kentucky tax scheme against the burden it imposes on interstate commerce. Using the Pike test, the local benefits of differential taxation may be overstated, and in fact, differential taxation distorts the interstate municipal bond market, thus diminishing national economic efficiency. This Recent Development will conclude that the Davis decision is unclear, incomplete, and violates established precedent.
Richard T. Page (J.D. 2010, Tulane) has published Comment, The International and Comparative Tax War: A Strategic Tax Cut Recommendation for the Obama Administration, 18 Tul. J. Int'l & Comp. L. 287 (2009):
To listen to the Tax Foundation's interview of Mr. Page, see here.
A. Purpose Statement: The purpose of this Comment is to answer three comparative tax policy questions. First, should the Obama Administration reduce U.S. tax rates for the strategic purpose of increasing the United States' international competitiveness? Second, if U.S. tax rates are reduced for such a strategic purpose, which taxes should be reduced? And third, how much of any such reduction is warranted?
B. Summary of Conclusion: The Obama Administration should reduce the U.S. corporate income tax rate from 35% to 12.5% for strategic purposes. The current rate is: (1) not competitive in relation to the rates of other nations, (2) avoidable by mobile multinational corporations that are shifting jobs and capital to lower-tax countries, (3) responsible for generating a relatively small percentage of federal tax revenue, and (4) targeted for reductions by Congressional representatives on both sides of the aisle. Conversely, strategic international considerations do not warrant significant changes in personal income tax rates or estate tax rates at this time.
Friday, February 26, 2010
Tanina Rostain (New York Law School) presents a chapter of her forthcoming book, Confidence Games: Lawyers, Accountants and the Tax Shelter Industry (MIT Press, 2011) (with Milton C. Regan (Georgetown)), at San Diego today as part of its Tax Law Speaker Series hosted by Karen Burke:
The book describes the historical, economic, and organizational forces that gave rise to the abusive tax shelter market in the United States between 1994 and 2004. After tracing the macro-factors – including the state of tax law enforcement, the booming economy, and the highly competitive atmosphere in which accounting and law firms were operating in the 1990’s – the book will offer a detailed account of the role of the high-profile organizations and individuals that spearheaded the rise of the abusive shelter industry. The accounting firms involved include KPMG, which ultimately paid close to a half billion dollar fine and entered into a deferred prosecution with the federal government; Ernst & Young, four of whose partners were convicted last spring of tax fraud; and BDO Seidman, whose former chair and other principals are currently under indictment.
- The Atlantic, What Real Tax Reform Looks Like
- The Committee for a Responsible Federal Budget, Wyden and Gregg to the Rescue
- Forbes, How To Clean Up The Tax Code: Does Wyden-Gregg Point the Way?, by Bruce Bartlett
- New York Times, In Tax Law, an Overdue Overhaul a Step, With Miles to Go, by Floyd Norris
- Daniel Shaviro, Wyden-Gregg Tax Reform Proposal
- Wall Street Journal, Sens. Wyden, Gregg Defend Call for Shift to Tax-Credit Bonds
The Treasury Department's Financial Crimes Enforcement Network (FinCEN today issued proposed regulations under the Bank Secrecy Act regarding reports of foreign financial accounts (FBARs).
- Proposed Regulations
- Announcement 2010-16 temporarily suspends non-U.S. citizens, residents or domestic entities the requirement to file FBAR forms for 2009 and earlier years.
- Notice 2010-23 provides FBAR filing relief for persons with signature authority and who own commingled funds.
- Bloomberg, Hedge-Fund Assets Offshore May Be Exempted From Reporting Rule
- Federal Tax Crimes, FinCEN Proposes Changes in FBAR Reporting Requirements
The National Association for Law Placement has released revised guidelines for summer associate recruiting, and the organization has backed away from recommendations to adopt a system that would have banned firms from making any offers before mid-January. Instead, NALP has recommended a system in which firms can make offers to 2Ls at any time but are only obligated to keep those offers open for 28 days instead of the current 45 days.
- NALP, NALP Announces Provisional Timing Guidelines for 2010, Adopting 28-Day Rolling Response Deadline
- Above the Law, Meet the New NALP Recruiting Guidelines, They’re Substantially Similar to the Old NALP Recruiting Guidelines.
Prior TaxProf Blog coverage:
- NALP Proposes January Kick-Off Day for 2L Summer Associate Offers (Jan. 8, 2010)
- Law Firms Balk at NALP's Proposed January Kick-Off Day for 2L Recruiting (Feb. 10, 2010)
- Abolish NALP Now (Feb. 17, 2010)
Nancy A. McLaughlin (Utah) & W. William Weeks (Indiana-Bloomington) have published Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight, 10 Wyoming L. Rev. 73 (2010). Here is the abstract:
This is the fourth in an exchange of articles published by the Wyoming Law Review discussing the application of charitable trust principles to conservation easements conveyed as charitable gifts. In 2002, Johnson County, Wyoming, attempted to terminate a perpetual conservation easement that had been conveyed to the County as a tax-deductible charitable gift. The County’s actions were challenged, first in a suit brought by a resident of the County, Hicks v. Dowd, and then in a suit brought by the Wyoming Attorney General, Salzburg v. Dowd. This article supports the position taken by the Wyoming Attorney General – that conservation easements conveyed as charitable gifts for the purpose of protecting the conservation values of the land they encumber in perpetuity constitute restricted charitable gifts or charitable trusts and, thus, such easements cannot be terminated without court approval obtained in a cy pres or similar equitable proceeding. For readers who do not have easy access to court documents in Wyoming, this article includes the relevant portion of the Motion for Summary Judgment filed by the Wyoming Attorney General in Salzburg v. Dowd as Appendix A.
- Karen C. Burke (San Diego), The Sound and Fury of Carried Interest Reform, 1 Colum. J. Tax L. 1 (2010): "Of all the proposals advanced in recent years to reform Subchapter K, the part of the Internal Revenue Code governing partnership tax, perhaps none has generated more acrimony and confusion than the pending carried interest legislation contained in proposed § 710. While reformers have framed the issue of taxing the compensatory portion of a service partner's return as ordinary income in terms of distributive justice, critics have been quick to invoke the rhetoric of class warfare to fend off reform. In the most elementary terms, the carried interest legislation would tax some (but not all) of a service partner's share of partnership profits as ordinary income. Even at this basic level, however, the contours of the proposed legislation are ambiguous. Indeed, the reform is sometimes misdescribed as taxing "distributions" rather than "distributive shares" as ordinary income, a distinction that is fundamental. Moreover, the precise tax advantage of carried interest arrangements depends crucially on whether one adopts a "joint-tax" perspective or focuses more narrowly on the service partner's opportunity for deferral and conversion. Apart from the merits of carried interest legislation, there is also considerable dispute over whether such reform is likely to raise significant amounts of revenue."
- Wei Cui (China University of Political Science and Law, Beijing), "Establishment": A Core Concept in Chinese Inbound Income Taxation, 1 Colum. J. Tax L. 46 (2010): "Analogous with the concept of a U.S. "trade or business" in U.S. federal income tax law, the concept of "establishment" under Chinese tax law determines the boundary between net-income and gross-income taxation of inbound investments. As central as the concept is, it has received surprisingly little interpretation. This Article traces the cause of this under-interpretation to China's traditional regulatory environment for foreign investment that was biased against portfolio investments and non-corporate business forms, and describes recent regulatory and commercial developments that may rekindle interest in elaborating the meaning of "establishment." It then reviews the interpretations that have been given to the concept under existing law, as well as several areas of commercial practice where additional guidance is urgently needed. Finally, the Article examines what policy considerations should guide the further development of the concept. This policy analysis considers the overall tax policy stance toward foreign portfolio investment that may reasonably be attributed to China. The country's large surpluses in current and capital accounts and currency reserves make it doubtful that a dramatically more favorable model for taxing foreign investment is appropriate in the near term. Nonetheless, because tax policy plays a subsidiary role to other regulatory policy in the treatment of foreign investments, cogent arguments can be advanced for adopting an interpretation of "establishment" that allows foreign portfolio investment already identified as beneficial for China to proceed."
- Lawrence Zelenak (Duke), Complex Tax Legislation in the TurboTax Era, 1 Colum. J. Tax L. 91 (2010): "When tax returns were prepared with pencil and paper—in an era now gone forever—Congress did not impose income tax provisions of great computational complexity on large numbers of taxpayers, in the belief that it was unreasonable to require average taxpayers (or their paid preparers) to struggle with computationally complex provisions. As return preparation software gradually replaced the pencil in recent decades, the complexity constraint weakened and eventually disappeared. Congress has responded by imposing unprecedented computational complexity on large numbers of taxpayers—primarily through the expanded scope of the alternative minimum tax and the proliferation of phase outs of credits, deductions, and exclusions. This response would not be problematic, if the only objection to computational complexity were the difficulty of performing the calculations—a difficulty overcome by the widespread adoption of software. Unfortunately, computationally complex provisions generally constitute bad tax policy, even apart from computational concerns. For taxpayers faced with a welter of computationally complex provisions, the income tax is a black box, the inner workings of which are beyond their comprehension. This undermines both the political legitimacy of the tax system and the ability of taxpayers to engage in informed tax planning. In response to the demise of the complexity constraint, argues this Essay, Congress should develop a self-imposed constraint against the enactment (or survival) of computationally complex provisions of widespread applicability."
The Hastings Constitutional Law Quarterly hosts its 37th Annual Symposium today on Waking from the California Dream: The Past, Present, and Future of California's Fiscal Constitution:
Keynote: Robert M. Hertzberg (Leadership Council Co-Chair, California Forward)
Panel #1: The Legal and Political Origins of the State's Current Fiscal Crisis
- Michelle W. Anderson (UC-Berkeley)
- Gerald Frug (Harvard)
- Steven M. Sheffrin (Tulane)
- Robert M. Stern (President, Center for Governmental Studies)
- Rick Su (SUNY-Buffalo)
Panel #2: California's Options Given the Present Constitutional Constraints & Political Climate
- Robert Feyer (Orrick Herrington & Sutcliffe, San Francisco)
- David Gamage (UC-Berkeley)
- Charles McLure (Hoover Institution)
- Scott Pattison (National Association of State Budget Officers)
Panel #3: Predictions, Possibilities, and Practicalities for Restoring the California Dream
- Jack Citrin (UC-Berkeley)
- Joseph Grodin (UC-Hastings)
- Jessica Levinson (Center for Governmental Studies)
- Daniel Mitchell (Cato Institute)
- Fred Silva (California Forward)
Many federal programs and parts of the tax code are currently indexed to increases in the consumer price index (CPI), a measure of inflation calculated by the Bureau of Labor Statistics (BLS). According to many analysts, however, the CPI overstates increases in the cost of living because it does not fully account for the fact that consumers generally adjust their spending patterns as some prices change relative to other prices. One option for lawmakers, as discussed in a brief released today, would be to link federal benefit programs and tax provisions to another measure of inflation—the chained CPI—that is designed to account fully for changes in spending patterns. (CBO previously discussed the possibility of using the chained CPI in its August 2009 Budget Options volume.) The chained CPI grows more slowly than the traditional CPI does: by an average of 0.3 percentage points per year over the past decade. As a result, using that measure to index benefit programs and tax provisions would reduce federal spending (especially on Social Security and federal pensions) and increase revenues. A separate appendix to the brief explains the methods and calculations that could be used to index the federal tax system, Social Security benefits, and federal pension benefits for the growth in the chained CPI.
Thursday, February 25, 2010
Above the Law chronicles lengthy delays in getting law school grades to students at Texas and William & Mary, and concludes:
I understand that law professors would rather drink wine straight from the box than grade a paper. It’s an onerous responsibility. But, it isa responsibility. Especially in this economy, where students are scrambling for scarce job opportunities. If a student has an incomplete transcript, or can’t produce a class rank upon request, a prospective employer might well go with one of the other hundreds of resumes flooding his or her inbox. ...
Grades and class rank are important. In this economy, they might be more important than ever. Pedagogical excellence and academic collegiality are all well and good, but at some point these law schools have to start understanding that their students are competing for jobs in a ridiculously difficult environment. Law school is a trade school, and right now there just aren’t enough career opportunities to go around. You just can’t screw around with people’s transcripts right now, and the entire community — from the deans to the professors to the person that files requests in the registrar’s office — has to be on the same page with this. ...
[N]o law school can afford to have the kind of difficulties students at W&M and UT are facing. It doesn’t matter if someone gets sick, it doesn’t matter if there’s a biblical plague of locusts, law schools just need to get these things done. No excuses. You need to get these things right on the first try.
I extend the general equilibrium techniques that have been applied to proportionate taxes to analyze the economic impact of non-proportionate taxes, including those with such commonly observed features as loss disallowances and progressivity. I analogize proportionate taxes to financial forwards and more general taxes to structured financial options. Option pricing theory and methods carry over naturally, and in general the burden of an income tax has a “certainty equivalent value” equal to the price of a corresponding complex option. A direct consequence is that non-proportionate taxes specifically burden the risk in risky investment returns, but not the expected level of these returns. If expected return levels are determined as a function of risk, then they may be burdened indirectly, but the existence of such a functional relationship depends on particular choices of market model and portfolio, such as an investment in the market portfolio under the CAPM.
After developing the general theory, I apply it to the specific example of a tax that is proportionate on gains but disallows loss offsets. Such a tax burdens the risk of returns and therefore encourages portfolio diversification targeted at risk minimization, without regard to expected portfolio return. It also heavily burdens investment in put and call options, with such investments being more disfavored the more out of the money, and hence the more risky, the options are. In addition, it penalizes division of risky asset ownership across taxpayers using put-call parity, and interestingly this means that it penalizes the use of debt financing as well. Finally, I describe ways in which the general theory applies both to broader classes of taxes and also to particular aspects of the current U.S. tax system.
Assaf Likhovski (Tel-Aviv University, Faculty of Law) presents Is Tax Law Culturally Specific? Lessons from the History of Income Tax Law in Mandatory Palestine at UCLA today as part of its Tax Policy and Public Finance Colloquium Series hosted by Steven Bank and Kirk Stark. Here is the abstract:
Tax law is a technical area of law which does not seem to be culturally specific. It is thus seen as easily transferable between different societies and cultures. However, tax law is also based on definitions and notions which are not universal (the private sphere, the family, the gift etc.). So, is tax law universal or particular? Is it indeed easily transferable between different societies? And in what ways does tax law reflect ethnic or cultural rather than economic differences?
This Article seeks to answer these questions by analyzing one specific example — the history of income tax legislation in Mandatory Palestine.
The IRS has sent over $100,000 in bogus tax refund checks to fifty inmates in a South Florida jail. It could have been worse -- the requested over $1 million in tax refunds.
- Associated Press, Inmates at S. Fla. Jail Accused of Scamming IRS
- Going Concern, Latest IRS Snafu: Inmates Collect $100k in Refunds
- Miami Herald, South Florida Jail Sams Turn IRS Into ATM
Andrew R. Walker (Milbank, New York) presents The Submerged Logic of 'Doing Business' and Attribution: Diving Below the Surface of the Offshore Lending 'GLAM' at NYU today as part of its Colloquium Series on Tax Policy and Public Finance. The co-convenors of the colloquium are Daniel Shaviro (NYU) & Mihir Desai (Harvard Business School). Here is part of the Introduction:
In a recent, widely publicized general legal advice memorandum [Chief Couns. Mem. 2009-010 (Sept. 22, 2009)] (the “GLAM”), the IRS raised questions about the standards that determine when a foreign person is engaged in the conduct of a trade or business within the U.S. under § 864 based on the attribution to the foreign person of activities conducted in the U.S. by agents or contractors. The GLAM focuses specifically on whether an active lending business is conducted by a foreign corporation in the U.S. if loan origination activity is carried out by U.S. agents or contractors. The GLAM concludes that, even if loans to U.S. borrowers are originated by an independent company that lacks express authority to contractually bind a foreign lender to make loans, interest on the loans is effectively connected with the active conduct of a lending, financing or similar business in the U.S. and subject to net income tax.
The GLAM invites scrutiny, not just for the specific result it reaches with regard to lending by foreigners, but for its general reasoning. This reasoning has implications for nexus standards under § 864 more broadly.
Following up my prior post: the First Circuit has summarily affirmed the decision of the Tax Court (Magdalin v. Commissioner, T.C. Memo. 2008-293 (Dec. 23, 2008)) denying a sperm donor's claimed medical expense deduction, even though the Service allows (per Priv. Ltr. Rul. 2003-18-017 (Jan. 9, 2003)) the expenses of egg donation as deductible medical expenses:
Magdalin v. Commissioner, No. 09-1153 (1st Cir. Dec. 17, 2009). See also Katherine Pratt (Loyola-L.A.), Deducting the Costs of Fertility Treatment: Implications of Magdalin v. Commissioner for Opposite-Sex Couples, Gay and Lesbian Same-Sex Couples, and Single Women and Men, 2009 Wis. L. Rev. ___,
Petitioner William Magdalin appeals a decision of the tax court holding non-deductible certain expenses he incurred in connection with fathering two children via in vitro fertilization of an anonymous donor's eggs with petitioner's sperm and placement of the resulting embryos in unrelated gestational carriers who gave birth to them. Petitioner stipulated in the tax court proceedings that he was not infertile and that he had had two children via natural processes with his now ex-wife.
This court reviews the tax court's factual findings for clear error and its legal conclusions de novo. ... We agree with the tax court and therefore summarily affirm its decision. As the court concluded, the various expenses incurred by petitioner were not for the treatment of any underlying medical condition suffered by the taxpayer; as noted, he stipulated that he was not infertile and that his previous children had been produced by natural processes in conjunction with the woman who was his wife at the time. In addition, the procedures were not for the purpose of affecting any structure or function of taxpayer's own body. Rather, they affected the bodies of the gestational carriers who, petitioner agrees, were not his dependents. Consequently, the tax court properly affirmed the Commissioner's disallowance of the deductions. The decision of the tax court is summarily affirmed.
An interesting tidbit has emerged in the high-profile divorce of the owners of the Los Angeles Dodgers: Frank and Jamie McCourt earned $108 million from 2004-2009 and paid zero federal and California income taxes.
- L.A. Times, Tax Men Strike Out Against McCourts
- L.A. Times, The Tax Man Cometh (Not)
- NBC, You Paid More Taxes Than the McCourts
- sportsBYbrooks, Tax Dodgers? McCourts Paid $0 on $108M Income!
SSRN has updated its monthly rankings of 629 American and international law school faculties and 1,500 law professors by (among other things) the number of paper downloads from the SSRN data base. Here is the new list (through February 18, 2010) 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):
IRS Commissioner Requests Additional $21m So IRS Will Not Answer Taxpayer Phone Calls 25% of the Time
In testimony yesterday before the House Appropriations Subcommittee on Financial Services and General Government, IRS Commissioner Douglas Shulman requested an additional $20.9 million to increase its level of telephone performance from 71% to 75%. From the National Taxpayer Advocate's 2009 Annual Report to Congress:
[T]axpayers have found it increasingly difficult to reach an IRS telephone assistor. During the 2007 tax return filing season, the IRS attained a Customer Service Representative Level of Service (CSR LOS) of 83% on its toll-free lines. In the 2008 filing season, the CSR LOS declined to 77%. During the 2009 filing season, the service level dropped further to 64% with a 519-second average speed of answer (ASA), which means the average caller sat on hold for nearly nine minutes. These declining numbers indicate that the IRS is not achieving its goal of improving service to facilitate voluntary compliance.
In response to the declining levels of phone service, the IRS has set goals of 71% percent for CSR LOS and 698 seconds for ASA in fiscal year 2010. In other words, the IRS has set its priorities so that nearly three out of every ten calls seeking to reach an IRS telephone assistor will not get through, and callers who do receive assistance will first have to wait on hold for an average of nearly 12 minutes.
The 2010 Albert R. Mugel National Tax Moot Court Competition (announcement) kicks off today at SUNY-Buffalo:
The Mugel Competition is the oldest national tax moot court competition in the United States. Each year, the competition gives law students from across the nation an opportunity to demonstrate their proficiency in oral advocacy and brief writing on a cutting edge issue of federal tax law and policy. The competition is open to J.D. students at all ABA-accredited law schools. Each school may enter one or two teams, consisting of two students.
Wednesday, February 24, 2010
Inside Higher Ed, The B-School Glass Ceiling:
Female professors at business schools tend to remain in the mid-faculty ranks after earning tenure, while their male counterparts are more likely to continue onward to full professor, according to a new study.
The study by Shani D. Carter, chair of the management and marketing department at Rhode Island College, is scheduled to be presented later this week at the annual conference of the Academy of Human Resource Development. It utilizes data from 1988 to 2004 provided by the National Study of Postsecondary Faculty.
While, during this 16-year time period, there were inequities in the distribution of males and females throughout the faculty ranks of all disciplines, Carter writes that these gaps were particularly stark in the field of business. For example, in 1988, the largest proportion of male and female faculty members were at the instructor level. As of 2004, the largest proportion of female faculty members were instructors, but a plurality of men (38.2 percent) were at the level of full professor. Additionally, the percentage of male full professors grew from 18.9 percent to 38.2, while that of female full professors only went from 6.4 percent to 13.8.
Proportion of Business Faculty Members in Various Ranks, by Gender
Professor Associate Professor Assistant Professor Instructor Lecturer 2004 Female 13.8% 15.4% 20.4% 40.7% 9.7% Male 38.2 23.2 24.5 10.5 3.7 1988 Female 6.4 8.3 16.7 57.6 11.0 Male 18.9 15.0 19.2 39.8 7.2
Carter also noticed a similar gender gap in the salaries of business school professors. For example, the 2008-9 salary survey conducted by the AACSB International: The Association to Advance Collegiate Schools of Business shows that female business professors, tenure and non-tenured, earn less than their male counterparts.
Deborah H. Schenk (NYU) presents Salience and Tax Design at Pennsylvania today as part of its Center for Tax Law and Policy Seminar Series hosted by Chris William Sanchirico and Reed Shuldiner. Here is the abstract:
This paper develops an argument for taking into account the salience of taxes as a fiscal policy tool at the federal level on political economy grounds. Most of the normative argument with respect to such taxes assumes that the intentional use of low-salience taxes by the government is undesirable. The paper makes a political economy argument for taking salience into account, specifically in cases where Congress finds it necessary to minimize the prominence of the tax because it cannot politically increase marginal tax rates. In developing the argument that salience may be an appropriate fiscal tool in some circumstances, the paper, begins by setting out the differences between transparency, complexity, and salience, which are often confused in the literature. The argument that taking into account salience is appropriate in some settings is dependent on the transparency of the political process by which the tax or provision is adopted and the degree of complexity of the provision. The paper’s argument for the use of salience differs in two ways from past literature with respect to salience. First it considers salience with respect to federal income taxes. Most commentators have explored salience in connection with consumption or commodity taxes. Furthermore it considers the salience of discrete provisions, rather than the salience of the tax itself. It concludes with a case study of the alternative minimum tax where a low-salience tax provision is justified and effective.
- Text of Bill (the Bipartisan Tax Fairness and Simplification Act of 2010)
- Two-Page Summary
- New Form 1040 (right)
- Congressional Research Service Revenue Estimate
- Combined Corporate Tax Rates for OECD Countries
- Examples of Changes from Current Income Tax
- Tax Calculations for 2011
Press and blogosphere coverage:
- Atlanta Journal-Constitution, Wyden-Gregg Tax Reform: A Small Step in the Right Direction
- Bloomberg, Wyden, Gregg Propose 24% Top US Corporate Tax Rate
- Christian Science Monitor, The Wyden-Gregg Bipartisan Tax Reform Plan: A Familiar Pattern
- New York Times, Senators Propose Big Corporate Tax Cut
- Politico, Sens. Ron Wyden, Judd Gregg Push Massive Tax Reform Bill
- Tax Lawyer's Blog, Tax Fairness Bill Update: Wyden and Gregg on Morning Joe
- Tax Policy Blog, Senators Wyden and Gregg Show Bipartisanship on Tax Reform
- Tax Update Blog, Bipartisan Tax Reform?
- Tax Vox, Senators Wyden and Gregg Climb Aboard the Tax Reform Bandwagon
- Wall Street Journal, Gregg, Wyden Offer Plan to Simplify U.S. Tax Code
The Senate yesterday voted 70-28 to approve the Jobs Bill (the Hiring Incentives to Restore Employment Act of 2010):
- Text of Bill
- Joint Committee on Taxation, Technical Explanation (JCX-4-10)
- Joint Committee on Taxation, Revenue Estimate (JCX-5-10)
- Los Angeles Times
- Washington Post
Man Who Bulldozed His $245k Home in Dispute With IRS and Bank May Do the Same to His Carpet Business
The local newspaper reports today that the man who bulldozed his $245,000 home in a dispute with the IRS and a local bank holding a $160,000 mortgage is now considering renting the bulldozer again to demolish the $500,000 building in which he operates his carpet business.
Robert W. Wood (Wood & Porter, San Francisco) has posted several of his recent tax articles on SSRN:
- Ten Tax Protestor Claims to Avoid, Forbes (Feb. 19, 2010)
- Ten Rules for Deducting Career Education, Forbes (Feb. 16, 2010)
- Ten Things to Know About COD Income, Forbes (Feb. 16, 2010)
- Wood Praises Article on Taxability of Personal Rights Compensation, 126 Tax Notes 677 (Feb. 1, 2010)
- Ten Things You Should Know About 1099s, Forbes (Jan. 27, 2010)
- Home Workers: Employee Status Hidden in Plain Sight, 126 Tax Notes 531 (Jan. 25, 2010)
- Wood Comments on Alimony Treatment Article, 126 Tax Notes 401 (Jan. 19. 2010)
- Notes from California’s Tax Trenches, 126 Tax Notes 247 (Jan. 11, 2010)
- Que Sera, Sera: Deducting Legal Fees, 125 Tax Notes 1115 (Dec. 8, 2009)
- To Withhold or Not to Withhold on Settlements?, 125 Tax Notes 925 (Nov. 24, 2009)
- Sausage, Capital Gain and Settlement Payments, 125 Tax Notes 413 (Oct. 29, 2009)
Following up on last week's post, IRS Releases 2007 Tax Return Data on Wealthiest 400 Americans: Income Soared 31% (to $345m), Tax Rate Fell 3.2% (to 16.6%):
- Center on Budget and Policy Priorities, Tax Rate for Richest 400 Taxpayers Plummeted in Recent Decades, Even as Their Pre-Tax Incomes Skyrocketed:
The effective federal income tax rate for the 400 taxpayers with the very highest incomes has declined by nearly half over the past two decades, even as their pre-tax incomes have grown five times larger, new IRS data show. The top 400 households paid 16.6% of their income in federal individual income taxes in 2007, down from 30% in 1995.
- Too Much: A Commentary on Excess and Inequality, Our Plutocracy: A Sobering New Portrait:
The IRS has released, with not a trace of fanfare, the latest figures on America’s 400 highest incomes. A shame. These new IRS figures deserve fanfare, at least a trumpet blast or two. Our top 400, the new numbers show, have moved into an exalted realm. They now rank among the greatest plunderers of all time. ...
The IRS official figures on top 400 incomes only go back to 1992. But we can assemble comparable totals from earlier IRS data releases.
The Business Insider has constructed a law school ranking with these weights:
- 40%: National Law Journal Go-To Law Schools (Placement in BigLaw 250)
- 40%: Super Lawyers (Number of Graduates Who Are Super Lawyers)
- 20%: U.S. News & World Report
Here are the Top 20:
(Hat Tip: Above the Law.)
Wall Street Journal editorial, Obama's New Investment Tax: A Sneaky Medicare Levy on Dividends and Capital Gains:
The White House's new health-care proposal promises the "largest middle class tax cut for health care in history," which is a creative way of describing a vast taxpayer-subsidized insurance entitlement. Naturally, the fine print goes on to describe one of the largest tax increases for health care in history, too.
This new ObamaCare bargain would for the first time apply the 2.9% Medicare payroll tax to "interest, dividends, annuities, royalties and rents," so-called passive income that we are told includes capital gains, though the latter wasn't explicitly mentioned in the proposal. This antigrowth investment tax would apply to singles earning more than $200,000 and joint filers over $250,000 and comes on top of the Senate's 0.9-percentage-point increase in the payroll tax, which would bring the combined employee-employer share to 3.8%.
The rate hike on investment income would presumably take effect at the same time the 2001 and 2003 Bush tax cuts are due to expire next year, bringing the top rate to 22.9% as the current top capital gains rate would also rise to 20% from 15%. That's a 52% jump, and the last time investors were slammed with anything comparable was 1986 when the capital gains rate bounced to 28% from 20%—or a 40% increase—as part of the Reagan tax reform that reduced income tax rates. ...
If Americans need another reason to oppose ObamaCare, or more evidence of its destructiveness, here it is.
In June, I blogged the article by Herwig J. Schlunk (Vanderbilt), Why Every State Should Have an Income Tax (and a Retail Sales Tax, Too), 78 Miss. L.J. 637 (2009):
This paper examines the general relationship between state tax policy and state spending policy and concludes that states that rely solely (or even primarily) on either an income tax or a retail sales tax to finance state spending are pursuing an ultimately unstable course. States that seek to pursue an ultimately stable course must include in their revenue streams both an income tax and a retail sales tax.
Herwig Schlunk has published a reply, Why States Should Not Adopt Consumption-Tax-Only Tax Structures, 79 Miss L.J. Missing Sources 105 (2010).
In 2008, the Vermont legislature enacted and Vermont’s governor signed into the law the first “low profit limited liability company” statute. Since that time, four other states have followed, and institutions as diverse as the Federal Reserve, the ABA’s Real Property, Probate and Trust Section, and the Vermont Law School have given credence to the notion that the “L3C” is a socially beneficial add-on to the law of limited liability companies. Indeed, L3C proponents have touted the device as: (i) a break-through in charitable giving, enabling “socially beneficial enterprises” to leverage foundation money to attract market-rate investors through “tranched investing;” (ii) a simple, wise, and useful development in the law of limited liability companies; and (iii) a method destined to be fast-tracked for special treatment under the provisions of the Internal Revenue Code dealing with “Program Related Investments” (“PRI”) by charitable foundations.
Unfortunately, these glowing characterizations are each flatly wrong. The “L3C” is an unnecessary and unwise contrivance, and its very existence is inherently misleading. Due to technical flaws, the L3C legislation adopted to date is nonsensical and useless. Moreover, the notion that an L3C should have privileged status under the Code is inescapably at odds with the key policies that underpin the relevant Code sections. The L3C is not on track (let alone a fast track) to any special status under the Code.
Debunking “the emperor’s new clothes” should be done painstakingly, and this article therefore proceeds through several parts: (1) summarizing the L3C concept and the claims of its proponents; (2) providing background information on the limited liability company and highlighting the aspects of LLC statutes that are relevant to a discussion of L3Cs; (3) explaining the concept of the Program Related Investments; and (4) critiquing the L3C construct and exposing its fundamental flaws under several different areas of law, including the law of limited liability companies, securities regulations, and PRIs.
The article concludes that L3C legislation is no “friendly amendment” to a state LLC statute. Using foundation funds to offer market-rate returns to “tranched” investors is at best a complicated device, not appropriate for “branding” and simplistic appeals to social conscience. When a foundation contemplates making a program related investment, the matter requires careful, individualized, professional assessment, not reliance on a branded template.
Tuesday, February 23, 2010
- Above the Law, Thomas M. Cooley Law School Buys Stadium Naming Rights
- Business Lansing, Lansing Cooley Ballpark Naming Rights Cost Nearly $1.5 million
Allison Christians (Wisconsin) presents Taxation in a Time of Crisis: Policy Leadership from the OECD to the G-20, 5 Nw. J. L. & Soc. Pol'y ___ (2010), at Michigan today as part of its Tax Policy Workshop Series coordinated by Reuven S. Avi-Yonah. Here is the abstract:
After decades of directing global economic policy standards alone, the United States and Europe publicly extended leadership power to some developing countries in response to the economic crisis of 2008-2009. But an entrenched international architecture of tax policy expertise ensures that a small group of established players continue to shape tax norms and practices throughout the world. This architecture is based on historical international power relationships and institutional history. For diplomatic restructuring on the world stage to usher in a new age of inclusion for previously marginalized states and peoples, systemic changes must also take place in these entrenched institutions and processes.
- Corporate income tax: -5.8%
- Personal income tax: -4.5%
- Sales tax: -4.2%
The decline was biggest in the Southwest (-18.1%); tax revenues increased 0.5% in New England. State tax revenues declined in 39 states:
Here are the states with the ten biggest declines in tax revenues, as well as the states with the largest inclreases/smalles declines in tax revenues:
Employment declined in all fifty states. (Hat Tip: Ann Murphy.)
- New York Times, Recession Tightens Grip on State Tax Revenues
Sens. Wyden, Gregg Introduce Bipartisan Tax Reform Bill: 3 Individual Rates (15%, 25%, 35%), 1 Corporate Rate (24%)
Following up on last week's post, Sens. Wyden, Gregg to Introduce Bipartisan Tax Reform Bill: Sens. Wyden and Gregg have published an op-ed in today's Wall Street Journal, A Bipartisan Plan for Tax Fairness: The U.S. Shouldn't Have One of the Highest Corporate Rates in the World:
There is an important issue looming on the congressional horizon: how to address the expiration of the Bush tax cuts at the end of this year. We believe there is a consensus way forward, which is why we are introducing the Bipartisan Tax Fairness and Simplification Act of 2010. ...
We reduce the number of tax brackets from six to three—15%, 25% and 35%—and simplify the tax code for individuals and families by eliminating the AMT. By nearly tripling the standard tax deduction, creating new opportunities for tax-free saving, and eliminating restrictions on personal exemptions and itemized deductions, under our proposal most Americans with an annual income of up to $200,000 will fare as well or better than they do under the current system. Furthermore, they won't have to worry about maintaining the records and receipts necessary to document itemized deductions.
In order to encourage investment, our legislation would exempt taxpayers from paying taxes on the first 35% of their long-term capital gains income. ...
Another key element of our proposal is a flat corporate tax rate. Currently, U.S. corporations are at a competitive disadvantage internationally. They pay the second highest tax rate in the industrialized world. Our legislation would reduce the top corporate tax rate, which can exceed 35%, and replace the existing six corporate rates and eight brackets with a single flat rate of 24%. ...
We make fiscally responsible tax reform possible by eliminating many of the specialized tax breaks strewn throughout the tax code. Our legislation maintains the most popular tax breaks like the mortgage interest deduction and the health-care tax exclusion, while eliminating specialized exemptions such as a company's ability to deduct as a business expense punitive damages resulting from lawsuits.
Wendy Nelson Espeland (Northwestern University, Department of Sociology) & Michael Sauder (University of Iowa, Department of Sociology) have published Rankings and Diversity, 18 S. Cal. Rev. L. & Soc. Just. 587 (2009). Here is part of the Introduction:
We begin with a brief overview of the meanings of “diversity” and offer a definition, a summary of how rankings are created, and the methods used in our research. Next, we discuss the actual and potential consequences of the rankings for diversity at three levels of analysis: 1) the individual decision-making of law school applicants; 2) the organizational decision-making of law schools in the admissions practices that create classes and distribute students across schools and programs; 3) and the heterogeneity of law schools as kinds of organizations with distinctive missions and niches in the field of legal education. We conclude by offering some strategies for mitigating the pressure that rankings place on diversity in legal education and law in the short term, and suggest the research needed to further specify the impact of rankings on diversity. This essay draws on evidence collected as part of a large, multi-method research project on the impact of USN rankings on law schools, as well as the findings of a small but growing literature on the effects of rankings on legal education. Elsewhere we have analyzed some of these processes in more detail. Our aim here is not to present a detailed empirical analysis, but instead to provide an overview of our findings, report on administrators’ and faculty’s concerns about the impact of rankings on diversity, and raise questions about how to think about professional diversity.
The IRS has slapped rapper Snoop Dogg with a $598,309 tax lien:
The IRS filed a $598,309 lien against Snoop Dogg (real name Cordozar Calvin Broadus) and his wife on Jan. 19 with the Los Angeles County Recorder of Deeds.
Wall Street Journal, IRS Plane Bomber in a Long Line of Haters, by Arden Dale:
Tax rage, like road rage, can be deadly.
Oliver Wendell Holmes said that “Taxes are the price we pay for a civilized society.” They are the source of many uncivilized acts, too.
Andrew Joseph Stack, who made the news Thursday when he crashed a small plane into Internal Revenue Service offices in Austin, Texas, is only the latest in a long line who have acted badly while in the grips of tax dysphoria. ...
Paul Caron, the Associate Dean of Faculty and Charles Hartsock Professor of Law at the University of Cincinnati College of Law, notes that the growth of the federal income tax has been accompanied by an opposition movement across a broad spectrum, and that the government’s prosecution of protesters has “resembled a game of “whack-a-mole,” with new protesters arising quicker then the government could prosecute existing ones.”
- Mauled Again, Taxes and Anger
- The Tax Lawyer's Blog, Deconstructing a Tax Wacko
- Think Progress, Rep. King Justifies Suicide Attack on IRS: Sympathizes With Hatred of IRS, Hopes for its Destruction
The tax centerpiece of President Obama's $950 billion health care plan are (1) increasing the Medicare tax by 0.9% for those with incomes over $200,000 (single) and $250,000 (joint), and (2) extending the 2.9% Medicare tax on wages to investment income (interest, dividends, capital gains, etc.) on those "wealthy" taxpayers:
- Bloomberg, Obama Endorses Medicare Tax, More Drugmaker Fees
- Christian Science Monitor, Obama's Health Care Plan Adds New Investment, Medicare Tax on Wealthy
- Future of Capitalism, Obama Goes for Tax Increases
- Greg Mankw, Financing Healthcare Reform
- The Hill, Tax Group Says Obama Healthcare Proposal Breaks Pledge
- Tax Vox, Obama Would Hit Investments With Medicare Tax, Water Down Insurance Levy
- Web CPA, Obama Presents Unified Health Care Legislation