Monday, May 24, 2010
One of the most reported topics during the latest tax filing season was the record number of Americans who filed an income tax return but had no income tax liability after taking their credits and deductions.
According to the latest IRS figures for 2008, a record 52 million filers—36 percent of the 143 million who filed a tax return—had no tax liability because their credits and deductions reduced their liability to zero. Indeed, tax credits such as the child tax credit and earned income tax credit have become so generous that a family of four earning up to about $52,000 can expect to have their income tax liability erased entirely.
There are millions of other Americans who have some income but not enough to be required to file a tax return. The Tax Policy Center has estimated that when these people are added to the 52 million nonpaying filers, some 47% of all households pay no income taxes at all.
New data from the IRS allow us to calculate the number of nonpayers in each state who filed a tax return.
% With $0 Tax
Wall Street Journal, Hire Your Kids, Get a Tax Break, by Laura Saunders:
Would you like a tax break for hiring a worker—say, a student, or even your spouse or child? Then Uncle Sam may have a deal for you.
In March, Congress passed the Hiring Incentives to Restore Employment—or HIRE—Act, but the law was overshadowed by the hubbub surrounding health-care overhaul. The law is worth paying attention to because it applies broadly. In order to encourage hiring, Congress gave employers a new, temporary tax break. For any qualified hire after Feb. 3, the employer gets to skip paying 6.2% Social Security taxes on the worker's wages from March 19 through the end of this year. The tax is computed on gross wages, so the savings on $40,000 of pay would be nearly $2,500.
There's more: If the worker stays on the payroll for a year, the employer can get an extra dollar-for-dollar tax credit of up to $1,000 on the 2011 tax return. ...
Now comes the important question for parents: Do HIRE benefits apply for taking on relatives? Yes and no. This is a pertinent issue with the school year ending, but this law is frankly wacky when it comes hiring to spouses, children, siblings, nieces and nephews. ...
Sole proprietors can claim HIRE benefits from hiring a spouse but not other relatives.
Partnerships, such as LLCs and LLPs, may hire spouses and other relatives, with exceptions. If the only partners are a husband and wife, they can't take the benefits for hiring a relative. The breaks are also unavailable to a partnership that hires relatives of a partner who has more than a 50% interest. Two unrelated partners, each with a 50% interest, are free to hire their spouses and relatives and take the benefits.
Subchapter S and C corporations: It's often harder here. The firm can't take HIRE breaks for relatives, including a spouse, of a shareholder who owns more than 50% directly or indirectly. The rules add together related owners: if four siblings each own 25% of an S-corp., then the relatives of all are off-limits.
Of course, these prohibitions don't mean you can't hire relatives; they just mean you won't get HIRE breaks.
Taxing Arizona: IRS Refuses TIGTA's Recommendation That it Verify Citizenship of 200,000 e-File Providers
The primary means by which the IRS regulates electronic filing (e-file) Providers are the application screening process and the monitoring program. ... Inadequate screening and monitoring increases the risk to both the taxpaying public and the Federal Government for potential losses associated with unscrupulous e‑file Providers.
The IRS has improved its screening of individuals and organizations applying to become electronic filing (e-file) providers, but it needs to monitor them more carefully, according to a new report publicly released today by TIGTA.
The IRS’s electronic filing (e-file) program enables taxpayers to send their returns to the IRS in an electronic format via an authorized e-file provider. The primary means by which the IRS regulates e-file providers is by screening applicants and monitoring compliance with program requirements. As of June 21, 2009, there were 207,419 Electronic Return Originators (EROs) who e-filed about 61 million (66 percent) of the approximately 92 million e-filed tax returns accepted in 2009. EROs originate the electronic submission of income tax returns to the IRS that are either prepared by the ERO or received from a taxpayer.
TIGTA evaluated whether the IRS effectively screens and monitors of e-file providers. To become an e-file provider, an applicant must meet required screening and verification checks. Applicants must be U.S. citizens or legal aliens and at least 21 years of age. An applicant who is not an attorney, Certified Public Accountant, or an enrolled agent must supply a fingerprint card, which is used to conduct a criminal background check.
While the IRS has an effective process for ensuring applicants meet age requirements and have no tax compliance issues, TIGTA found that the IRS is not consistently verifying that new applicants are U.S. citizens or legal aliens authorized to work in the United States. ...
TIGTA made six recommendations to the IRS, including that it ensure that citizenship ... status [is] verified for all e-file program applicants. ... The IRS agreed with all but one of TIGTA’s six recommendations. It disagreed with TIGTA’s recommendation that it verify citizenship because concerns that pending legislation mandating e-file for most return preparers will require the IRS to modify current citizenship rules. TIGTA said the IRS should continue to ensure that all U.S. based e-file Providers should have a valid Social Security Number and pass a citizenship test.
The legal blogosphere began, as we have discussed, as a Hobbsian state of nature. See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings. The Blogosphere was originally populated by individual faculty who for one reason or another started a law blog. The platform was outside their home law school, providing a certain degree of libertarian style independence. The Blogs would focus on that faculty member's particular musings. there has been a tendency for law blogs to either fall into the camp of gossip (a broadly defined term that would, for example, encompass Brian Leiter's Law School Blog) or specific substantive areas. They came and went.
Over the last few years, however, order has begun to overtake the blogosphere. First, the blogs have largely ceased to be the isolated musings of individual faculty. One change has been the advent of Empires. Paul Caron at Cincinnati has run a blog Empire, the Law Professors Blog, with his writers receiving compensation (something discussed in Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings) and coming under a common rubric. These Blogs remain located on independent servers but have lost their libertarian spirit through common rules that, for example, eschew personal musings.
In addition, law blogs associated with specific law schools and relying on their servers have become more common. Some are faculty blogs, advertisements mostly, although others are more substantive. Chicago is a good example of law school with a successful faculty blog. Others are substantive blogs, with the Harvard Corporate Governance Blog an example of this category. Finally, many other successful law blogs have either started as, or have evolved into, a group effort, with the members changing and shifting but providing constant content. The Conglomerate and Truth on the Market are examples.
Those individuals who were on the blogosphere at the beginning, starting their own idiosyncratic blog, have begun to die off. It may be that readers want the benefit of organization. It may also be that running a blog as an individual is a grinding task of daily posts.
An example of that occurred this week with the announcement by Larry Ribstein that Ideoblog, after six years, would go out of business. He would instead lend his often weighty voice to Truth on the Market. In short, he has joined a group effort. His explanation was that the move "will not only unite me with a great group of market-oriented commentators, but also expand my reach." ... Organization has its benefits but also its costs. The demise of Ideoblog is part of that process.
Nero fiddled while Rome burned, but at least he didn't strike the match. Members of Congress are doing Nero one better. In the middle of the second global financial crisis in two years, Congress is preparing to dramatically raise a key tax rate on long-term investment. This is sure to discourage capital investment, increase the cost of money to start and grow businesses, and depress real-estate and stock prices, all at the worst possible time.
Last week, Senate Finance Committee Chairman Max Baucus (D., Mont.) and House Ways and Means Chairman Sander Levin (D., Mich.) released joint legislation that would among other measures significantly raise the tax on "carried interest." Now the tax rate on these long-term capital gains earned by the general (managing) partners of investment partnerships is 15%. The new law would raise the rate to as high as 38.5% (three-fourths of the gain would be taxed at ordinary income tax rates and one-fourth at capital gains rates, both of which will be increasing as well).
Tax rates matter. And what matters about them is what activities get taxed, not who gets taxed. When you increase the tax rate on an activity, you get less of it. The only question is how much less of it you will get. ...
Singling out carried interest for higher tax rates amounts to an unwise increase in long-term capital gains tax rates. It will have the same depressive effect on the economy. This would be a bad idea at any time. In today's conditions, when the U.S. economy needs every dollar of long-term investment it can generate, it is senseless.
Johnston examines the motives behind increased enforcement of cigarette excise taxes and how tax policy can be used to stop price gouging by manufacturers.All Tax Analysts content is available through the LexisNexis® services.
It's the month when law school graduates soon are walking across stages during ceremonies throughout Connecticut and across the country. And as they proudly hold that well-earned J.D., they should be ready to figure out new and creative ways to use it.
Two years after the beginning of a significant shakeup in the legal industry, there's no guarantee that new grads will start their careers in law firms that historically scooped up talent a year or more before anyone passed the bar exam.
These days, graduates should be prepared to find alternative opportunities in the law, or even take a nonlegal job to pay the bills and get experience through pro bono work, say career development directors at several law schools in the region.
Chronicle of Higher Education, The Postradical Legal Generation: Elite Law Schools, and the Court Nominees Who Come From Them, Have Changed, by David Fontana (George Washington):
When President Barack Obama nominated Elena Kagan to the U.S. Supreme Court last week, he described her appeal in much the same way he has described his own: as a postpartisan figure. Just as Obama and Kagan represent a generation of national political figures trying to be postideological, so too they represent a distinctive generation of figures in elite law schools—as does Obama's last Supreme Court nominee, Sonia Sotomayor.
All three graduated from their respective law schools (Obama and Kagan from Harvard Law School, Sotomayor from Yale Law School) at a time when most of the more-radical members of the faculty had either already disappeared or were losing their last battles. More than that generation, Sotomayor, Obama, and Kagan have avoided major ideological fights and the most polarizing legal issues. Indeed, in the cases of Obama and Kagan, they helped move their law schools beyond the more-polarizing ideological battles.
In that way, all three are part of the law-school "postradical generation." Just as that helps us better understand their careers, the dynamic also helps explain some of the difficulties Obama will have in appointing influential liberal judges.
The law and the law schools that teach it are temperamentally more conservative than the rest of the university. Anthropologists or sociologists do not teach their classes wearing suits, but law professors often do. While students in the humanities might be considered to have dressed up if they attend class in jeans, law students are often caught wearing nothing more casual than khaki pants. The professionalism of the American law school is evident. ...
Law schools have changed a lot since Sotomayor, Kagan, and Obama sat in their first classes decades ago. Understanding those changes can help us better understand today's courts—and the legal thinkers presidents may appoint to sit on them.
Sunday, May 23, 2010
- Did Church's 'Tweets' Violate § 501(c)(3)?
- An Unwelcome Guest at Stetson's Graduation Ceremony
- 'No Taxation Without Representation' in the American Woman Suffrage Movement
- The Strict Liability Standard and the Economic Substance Doctrine
- Top 5 Tax Paper Downloads
- Ex-IRS Agent's Reality TV Show: IRS Hitman
- Waggoner: Critique of U.S. House Bill 2454 on Climate Change
- Christensen: Lawyering Skills Grades as the Strongest Predictor of Law School Success
3. [341 Downloads] The Federal Estate Tax: History, Law, and Economics, by David Joulfaian (Office of Tax Analysis, Treasury Department)
4. [305 Downloads] A Myth Deconstructed: The 'Emperor’s New Clothes' on the Low Profit Limited Liability Company, by Daniel S. Kleinberger (William Mitchell)
5. [304 Downloads] Taxation and the Sabbatical: Doctrine, Planning and Policy, by John A. Miller (Idaho) & Robert Pikowsky (Georgia Institute of Technology)
- IRS Hitman Reality TV Show
- Press Release, Wanted by America, the IRS (+) Hitman Reality TV Show is Here
- Going Concern, Just So You're Aware, An Ex-IRS AGent has a Reality TV Show
Michael Waggoner (Colorado) has published Critique of U.S. House Bill 2454 on Climate Change, 2 Amsterdam L. Forum 61 (2010). Here is the abstract:
This article criticizes the recently-passed House Bill 2454 on climate change for:
(a) its harms to U.S. industries competing with competitors not subject to cap and trade;
(b) weakness of cap and trade as a control on emissions, based on overestimating the
effectiveness of SO2 limits and overstating the analogy between sulfur and carbon
(c) the often bad or limited effects of regulation and subsidies;
(d) the regressive impact of cap and trade.
In each of these areas, a carbon tax would be simpler, more fair and effective, and less destructive.
This article concludes that where cap and trade has met with great resistance from the developing nations, they would have reason to accept a carbon tax. A carbon tax would boost their revenues, where cap and trade will place a drag on their economies. A carbon tax, imposed on imports and rebated on exports, would be simplified by eliminating the impose/rebate system on trade between nations with similar carbon taxes, thus giving developing nations an incentive to join the developed nations in imposing such a tax.
Saturday, May 22, 2010
It is time to end the longstanding divide between skills and doctrine in legal education, and it is time for legal education to go beyond training students to simply “think like a lawyer.” The results of the study discussed in this Article suggest that skills classes may enhance the learning and success of law students. In this study, Lawyering Skills Grade were the strongest predictor of law school success. Further, those law students who received higher grades in Lawyering Skills were more likely to be mastery-goal-oriented; and mastery-goal-oriented students tended to be the most successful students in law school. Based upon the results of this study, the best advice we can give to our beginning law students is to devote a significant amount of time and energy to their skills classes. Further, as law schools begin to consider how to reform their curricula in accordance with the Carnegie report, they need to consider the importance of skills classes to their students’ overall learning and success. ...
There is no doubt that legal educators have the difficult task of preparing students for the practice of law. Graduating law students should be prepared to serve their clients in terms of both the substantive law and the application of the law in practical settings. Legal educators are obligated to help students acquire these core foundational skills: written and oral communication, research, critical and analytical thinking, and cooperation with colleagues.
As legal education evolves, I envision a law school curriculum that values and incorporates professional skills with doctrine and a curriculum that stresses competence over performance. The law school curriculum as a whole should emphasize knowledge accrued over time versus knowledge accrued quickly for an exam—and then forgotten. As law professors, our mission is to equip the next generation of lawyers with the tools they need to practice law competently and professionally. If we are truly willing to undertake this mission then we need to commit to integrating skills and doctrine more fully. This type of mastery goal structure (versus the current performance goal structure of legal education) would prepare our students far better to be lawyers. In addition, legal educators should strive to use teaching methodologies that incorporate problem-based learning, cooperative learning, and right-brain learning; this type of teaching will enhance our students’ success in all of their law school classes. And it will prepare our students more effectively to serve their clients and to face the challenges inherent in the practice of law.
- Americans United Letter
- Americans United Press Release
- The Examiner, California Church ‘Tweets’ Candidate to Victory
- Going Concern, IRS Asked to Crack Down on Church's 'Troubling Tweets'
- Religion Clause, Group Asks IRS To Invetigate Church's Online Endorsement of Candidate
(Hat Tip: Dorothy Brown.)
[A]t the Stetson University College of Law [graduation ceremony], ...students were on the stage, presenting the class gift, when a ripple of activity passed through the faculty section. A snake was slithering through their midst, between, under, and — in some cases — over their feet. No one screamed, ... but a few professors were frightened.
Eventually it stopped at the foot of the stairs leading to the platform, and [Vice Dean Royal C. Gardner] and two other environmental-law professors stepped forward to investigate. After examining its colors, they concluded it was a non-venomous black racer. Mr. Gardner tossed his mortarboard over its head, seized it by the tail, and freed it in some nearby bushes. The ceremony proceeded with minimal disruption.
"A number of people thanked me for saving the faculty from the snake," he says. "I was actually trying to save the snake from the faculty."
Juliana Tutt (J.D. 2010, Stanford) has published Note, "No Taxation Without Representation" in the American Woman Suffrage Movement, 62 Stan. L. Rev. 1473 (2010). Here is the abstract:
"No taxation without representation" has lasting appeal as a political catchphrase. But the impact of the motto is limited if it is not accompanied by striking actions or persuasive arguments. In this Note, I examine the problems that American woman suffragists encountered when they tried to put "no taxation without representation" to use, both in the realm of action and the realm of debate. In short, suffragists had difficulties committing to a widespread tax resistance strategy; they were forced to admit that the taxation argument led logically only to taxpayer suffrage, not to universal suffrage; and they struggled with resulting uncertainty over the wisdom of using "no taxation without representation" rhetoric at all. I also show how these weaknesses were mitigated, to some extent, by the introduction of the federal income tax late in the game. This Note, therefore, explains why the taxation argument was often passed over by suffragists and is rarely studied in the secondary literature, while at the same time highlighting the fascinating historical role it played, nonetheless.
Mik Shin-Li (J.D. 2011) has published Note, Strictly Wrong as a Tax Policy: The Strict Liability Standard in Noneconomic Substance Transactions, 78 Fordham L. Rev. 2009 (2010). Here is the abstract:
This Note analyzes the propriety of using a strict liability standard to assess tax penalties for transactions lacking economic substance. Noneconomic substance transactions lack legitimate business objectives and exist only to produce tax benefits. Under current law, the IRS can disallow the tax benefit claimed by the taxpayer and then assess a penalty for the taxpayer’s understatement of tax liability. In response, the taxpayer can assert a reasonable cause exception, which can serve as a defense to the penalty should the taxpayer demonstrate that he had reasonable basis for his tax position. In the last decade, numerous legislative proposals sought to eliminate the reasonable cause exception and replace it with a strict liability standard. This Note examines the conflict created by this potential change in the tax law.
This Note begins by defining the economic substance doctrine, as used in the U.S. courts of appeals, to determine whether a transaction lacks economic substance. This Note then explains the accuracy-related penalty assessed for noneconomic substance transactions, as well as the reasonable cause exception to the penalty. Two cases illustrate the interaction of the economic substance analysis, the tax penalty, and the reasonable cause exception. Next, this Note summarizes legislative proposals spanning from 1999 to 2009, which would codify the economic substance doctrine and adopt a strict liability penalty standard. The strict liability standard is then analyzed at length, as this Note discusses the arguments for and against it. Ultimately, this Note concludes that on balance, the strict liability standard should not be adopted, but regardless of whether the current penalty regime is retained or alternative solutions are developed, the reasonable cause exception should remain a feature of the standard by which to penalize noneconomic substance transactions.
Friday, May 21, 2010
James Frederick Tenney, 57, a tax partner at the Atlanta law firm of Merritt & Tenney, has been charged with putting a surveillance camera under the desk of a woman who worked at his firm. The ABA Journal notes that "[h]is law firm biography says he is married with three children and enjoys photography."
John Prebble (Victoria University of Wellington) and Marco Greggi (L’Università degli Studi di Ferrara) have invited colleagues to attend and to submit proposals for a colloquium in Ferrara, Italy, on Jurisprudential Perspectives of Taxation Law on September 7-8, 2010:
The colloquium will focus on analytical and descriptive legal philosophy as applied to income tax law, examining judicial reasoning in income tax cases. Seminars will examine such questions as: do legal philosophers’ expositions of the nature of law adequately explain the nature of income tax law? What light do theories of jurisprudence that have not traditionally examined income tax law shed on this question? While contributions are welcome on all topics of taxation law, papers that apply jurisprudential analysis to international tax arbitrage or treaty abuse are particularly welcome. (Discussion will generally not be concerned with normative jurisprudence nor with, for instance, whether governments should use taxes to redistribute wealth.)
[W]hen I looked online to sign up for one of these lauded [LSAT] prep courses, I found that their cost ranged from $1200 to over $9000 -- with in-class hours ranging from eighty-some to over three-hundred! This is very problematic on more than one level.
First, the vast majority of Americans (even the majority of American college students) cannot afford to blow $1,200 to $9,000 on a prep course. Many of us are already heavily saddled with debt, others simply do not have the cash on-hand. ...
Second, of course, is the problem of the time needed to dedicate to these courses. In addition to the massive amount of cash college seniors are expected to fork over to Kaplan or Princeton Review, we must also dedicate hundreds upon hundreds of hours in order to get our money's worth! ...
But even if a student has chosen not to take the expensive path of a prep course as his or her chosen path to law school, they still face the problem of the sheer amount of time required to prepare for the LSAT. One of these previously-mentioned books suggested that one to two hours of studying each and every day was insufficient -- instead, the book suggested, try to study for four or more hours. What not-obscenely-rich student amongst us has four or more hours to study for the LSAT? Even if college students don't have to pay for the overpriced Kaplan courses, they may still be working to pay for college expenses. ...
Meanwhile, these lower-class and middle-class students have to compete with those who have the time, effort, and money to not only spend on expensive one-on-one tutoring (exponentially more expensive than the classroom instruction offered) -- but who also do not need to worry about a job to help them pay their bills. ... [I]f any law school admissions officer is reading this article, I urge you: grade your applications on a socioeconomic curve, and remember that wealth should not be a precondition of acceptance.
Check out this comic strip.
If the test is really going to be this important to our system of legal education, at the very least it should be fundamentally fair to all socioeconomic backgrounds.
Instead, the LSAT confers another privilege to those born into a middle-class or better family. It’s another benefit of winning the birth lottery. People should at least consider that aspect of the test before making sweeping judgments about others based on their LSAT scores.
Following up on my prior post: the Associated Press reports that Tax Prof I. Richard Gershon (former Dean of Texas-Wesleyan and founding Dean of Charleston) has been named Dean at the University of Mississippi School of Law, effective July 1. (Hat Tip: Dan Filler.)
U.S. News Responds to TaxProf Blog Post by Preventing Law Schools From Gaming Employed at Graduation Data
The problem with being totally transparent about key methodology details about U.S. News's America's Best Law Schools Rankings is that it's clear—based on our own analysis of historical trends in the our law school rankings and recently published blog posts—that certain law schools are taking advantage of that knowledge to game our rankings.
U.S. News is going to take steps to prevent these data manipulations by law schools in future rankings. The post serves as notice of those changes to be explained below. ...
U.S. News has said that the percent of J.D. graduates employed at graduation and those employed nine months after graduation count for 4.0% and 14.0% of the overall rankings, respectively. U.S. News has publicly disclosed the formula used in its ranking model to estimate the employed-at-graduation figure, should a law school not report the percentage of graduates who are employed at graduation.
The formula has been: that law school's employed-at-nine-months percentage minus approximately 30 percentage points equals employed at graduation. For example, for a law school with a 90% rate of employment at nine months, its ranking would be computed using an estimate of 60%. U.S. News publishes these nonreporters's data as N/A on the law school ranking table.
Why is U.S. News making this estimate? In the past, we had been told by many in law school career services offices that some law schools didn't or couldn't keep track of the proportion of their J.D. graduates with jobs at graduation, that what really mattered was nine months out, and that it would not be fair to penalize law schools in the rankings if they didn't have the employed-at-graduation data.
The problem created by this openness about our ranking model is that it's clear that more law schools have decided whether to report their at graduation employment based on how their actual percentage will compare to the estimate U.S. News will make for them. For example, a law school knows that its actual at-graduation employment rate is 40%, but knows because of our transparency that based on its nine-month rate, U.S. News will estimate 60% for its at-graduation rate, that school has chosen not to report its actual numbers and instead lets U.S. News make the estimate. In other words: ranking gamesmanship.
In the latest edition of the America's Best Law Schools rankings, 74 law schools (39% of those that were ranked) did not report their at-graduation employment rate. This is nearly double the number of schools (38) that did not report in the 2005 edition. U.S. News believes that this increase proves that far more law schools do track their students at graduation and believe that virtually all law schools could be reporting vital job placement data and have chosen not to do so in order to game the rankings.
Paul Caron, associate dean at University of Cincinnati's Law School and the publisher and editor of the widely followed Tax Prof blog, recently wrote a piece titled Did 16 Law Schools Commit Rankings Malpractice? that documented the growing number of schools who are choosing not to report their at-graduation employment rates to U.S. News. Caron wondered why 16 law schools purposely reported lower at-graduation employment rates than the higher estimated rate that U.S. News would calculate for them, calling this "ranking malpractice." The ABA Journal also wrote a story about this: "Were 16 Law Schools Too Revealing in Disclosures to U.S. News?" U.S. News strongly believes that schools should report their at-graduation data and finds the suggestion that schools that honestly report data are doing something wrong is misguided.
U.S. News is planning to significantly change its estimate for the at-graduation rate employment for nonresponding schools in order to create an incentive for more law schools to report their actual at-graduation employment rate data. This new estimating procedure will not be released publicly before we publish the rankings.
I understand that U.S. News generated the formula it formerly used to estimate the Emp9 figure for non-reporting schools by running a regression comparing the Emp0 and Emp9 data from reporting schools. It used to puzzle me that U.S. News did not evidently re-run the regression each year, but rather stuck with the original estimate. In retrospect, though, I see that sticking to the same formula might have partially helped U.S. News offset the gaming it so dislikes. After all, as more and more schools with low numbers refused to report Emp9 data, opting to rely instead on the publicized formula, the correlation between Emp0 and Emp9 scores would change so as to favor non-reporting schools. Better to stick with the old formula, dated though it might be, than to increase the incentive to opt out of reporting.
U.S. News thus avoided a vicious cycle, but only at the cost of signaling to schools exactly when hiding Emp9 data would help their rankings. Will its new reticence work? Schools can now only guess at how U.S. News will turn Emp0 numbers into Emp9 estimates, and will rightly worry that they might misjudge the new cutoff. Even if big-E ethics does not counsel reporting Emp9 numbers, therefore, small-c conservatism will. Granted, a school might reason, "U.S. News will still try to find a reasonably accurate way to turn Emp0 data into Emp9 estimates, and it has always helped us to not report in the past, so it remains a gamble worth taking." But such schools should also rightly worry that U.S. News might throw a punitive little kick into its new formula, to encourage schools to worry more about accuracy than about rankings.
Prior TaxProf Blog coverage:
- ABA Proposal to Include Student Learning Outcomes in Accreditation Standards (Dec. 31, 2009)
- Law Schools Resist Learning Outcome Measures (Jan. 11, 2010)
- The Law School Accreditation Debate: Student Learning Outcomes v. Faculty Scholarship (Jan. 26, 2010)
The Tax Policy Center and Lincoln Institute of Land Policy host a two-day conference beginning today on Effects of the Housing Crisis on State and Local Governments:
This conference will explore how state and local governments are responding to the severe budgetary shortfalls precipitated by the sharp decline in housing values and the subsequent economic downturn. Participants will discuss regional differences in housing market outcomes and economic activity, the adequacy of current tax systems, what housing foreclosures mean for children, and lessons from other countries.
Thursday, May 20, 2010
New York Times, Whistle-Blowers Become Investment Option for Hedge Funds, by David Kocieniewski:
(Hat Tip: Ann Murphy.)
Hedge funds have found a new market to invest in: whistle-blowers.
Informants who turn in tax cheats have to wait years to get their share of any reward from the IRS’s recently expanded whistle-blower program. So hedge funds, private equity groups and other big investors are offering an alternative. They are essentially agreeing to buy a percentage of those future payouts in exchange for a smaller amount upfront to the whistle-blowers.
The surging size of the potential awards is driving all the interest. Three years ago, the IRS began offering bigger rewards — 15% to 30% of whatever money the government recovered — in a move that has turbocharged the agency’s whistle-blower program.
Where it once handled only a trickle of tips, often involving relatively small amounts of unpaid taxes, IRS offices now receive a torrent of big money claims. Accountants and company employees have taken to trooping in bearing computer records and boxes of documents to back up their claims of underpayment by big companies.
In what is believed to be the first of these structured tax payouts, an IRS informant who reported that an overseas multinational corporation had underpaid its taxes by billions of dollars received $4 million last month from a private equity firm. In exchange, the firm will receive a portion of the award the informant expects to collect eventually.
Following up on my recent posts:
Center on Budget and Policy Priorities, Stalled Proposal to Cut Estate Tax Further Is Deeply Flawed and Should Not Be Revived:
A proposal that several senators were developing — before negotiations stalled this week — to cut the estate tax beyond the generous parameters in place in 2009 was deeply flawed, relying on two budget gimmicks to mask its unaffordable cost.
NALP today released employment data for the Class of 2009: 88.3% of the 40,833 graduates were employed as of February 1, 2010.
- ABA Journal, Have JD, Now What? Many Law Grads Get Jobs, But Not Dream Careers
- Above the Law, New NALP Numbers Are Out — and as Bad as Ever
- American Lawyer, NALP Employment Numbers: What to Believe?
- Wall Street Journal Law Blog, The Numbers are In: The Job Market Stinks!
On May 6, the Tax Court unanimously, but on divided rationales, invalidated temporary Treasury regulations retroactively extending the six-year limitations period to income tax deficiencies resulting from basis overstatements. Intermountain Insurance Service of Vail, LLC v. Commissioner, 134 T.C. No 11 (2010). I think the result is correct but only on the procedural ground advanced by two concurring judges: that the regulations violated the Administrative Procedure Act (“APA”) for failure to satisfy the notice-and-comment requirements.Intermountain is “must” reading for tax academics and practitioners. It is the richest decision in years (arguably ever) on issues relating to the procedural and substantive validity of tax regulations. Moreover, the opinions in the case, the subsequent cases that undoubtedly will be decided as to the issue, and commentary on these opinions and cases present genuine opportunity for improvement of the law. I below describes Intermountain. This part may be omitted by those already knowledgeable as to the case and its context. Parts II and III address two of the most interesting aspects of the case. Part II discusses whether the regulations at issue in the case are legislative or interpretive in nature. This matters to the APA argument. Unless another exception applies (and none does in Intermountain), legislative regulatives must go through notice-and-comment, but interpretive regulations need not. I conclude that the challenged regulations are legislative. Part III examines the light shed by Intermountain on the Brand X rule as to when subsequent regulations may trump judicial interpretations of statutes. I conclude that Intermountain and similar cases may help at one level (whether “magic words” must appear in the judicial interpretations) but are unlikely to help at two other levels (what should be done if the precedents’ characterizations are unsupportable and whether the Brand X analysis of the underlying statute turns on the statute’s language or embraces as well pertinent legislative history).
Chief Executive magazine has published its annual survey of CEOs for their opinions of the best and worst states for business. 600 CEOs rated states on a wide range of criteria from taxation and regulation to workforce quality and living environment, Here are the Top 10 and Bottom 5 states:
The Top 10 and Bottom 10 states based solely on the Taxation, Regulation, Government, and the Economy category are:
(Hat Tip: Woody McNair.)
SSRN has updated its monthly rankings of 650 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 May 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):
The Subcommittee on Energy, Natural Resources, and Infrastructure of the Senate Finance Committee holds a hearing today on Clean Technology Manufacturing Competitiveness: The Role of Tax Incentives. Here are the witnesses scheduled to testify:
- Mark Mazur (Deputy Assistant Secretary for Tax Analysis, U.S. Department of the Treasury)
- Henry Kelly (Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, United States Department of Energy)
- Robert Atkinson (President, Information Technology and Innovation Foundation, Washington, D.C.)
- Jon Sakoda (Partner, New Enterprise Associates, Chevy Chase, MD)
- Douglas Parks (Senior Vice President, Michigan Economic Development Corp., Lansing, MI)
- Kevin Book (Managing Director, ClearView Energy Partners, Washington, D.C.)
- Karen Alderman Harbert (President & CEO, Institute for 21st Century Energy, U.S. Chamber of Commerce, Washington, D.C.)
- J.D. Foster (Norman B. True Senior Fellow, Economics of Fiscal Policy, The Heritage Foundation, Washington, D.C.)
Wednesday, May 19, 2010
Inside Higher Ed, When Students Drop the F-Bomb:
At Hinds Community College, swearing can get you in trouble. "Public profanity, cursing and vulgarity" are all punishable with a $25 fine for a first offense, and a $50 fine for a second offense. Further, the offense of "flagrant disrespect" (which may be demonstrated by swearing, as became clear Tuesday when a controversy over the code went public) can earn a student demerits that could lead to suspension.
Hinds appears to be relatively rare among public colleges in regulating speech in this way. And the Foundation for Individual Rights in Education has taken up the case of a student who faced charges following an incident in which -- after class, but in the presence of an instructor -- he said that a grade he had just received was "going to fuck up my entire G.P.A." The instructor first threatened to place the student in detention and when the student pointed out (correctly) that the college doesn't have detention, the "flagrant disrespect" charges were made. ...
Several experts on student conduct toward faculty members said that they were surprised that a policy like Hinds' existed at any public college or university -- and that they agreed with FIRE's analysis that it violates First Amendment rights. Several, however, said that professors do face real difficulty with profanity and numerous other forms of rudeness from students. And several of these educators said that colleges need to think more about how to promote respectful interactions between students and faculty members -- without becoming the "vulgarity police."
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You know the expression that the rich are different. Well, we found out that President and Mrs. Obama made more than $5 million last year, and after examining their tax returns, I can say that they are different — but not in the way you might think. They are different because, for their income group, they paid too much in taxes.
The first couple earned more than $5 million and paid 32 percent in federal income taxes. When compared with their peers, they paid too much. According to the most recent IRS statistics, most households with adjusted gross incomes of at least $5 million paid only 23 percent in federal income taxes. Were the Obamas trying to single-handedly reduce the deficit by paying extra taxes they did not owe? No. Their taxes were high because of how they earned their money.
Update: Another question about President Obama's 2009 tax return: why did he report $5,661,666 in book royalties on Schedule C rather than Schedule E? Is the President really in the trade or business of writing books?
For many small charities in the United States, May 17 may be remembered as the day their tax exemptions died. This was the deadline for charities with annual revenues of less than $25,000 to file Form 990 with the IRS.
The IRS uses Form 990 to verify that charitable organizations meet the conditions for receiving tax-deductible contributions and qualifying for tax exemptions. Until now, the smallest charities did not have to file 990s. But thanks to a seemingly minor provision of the 2006 Pension Protection Act, more than 400,000 additional nonprofits—nearly half of public charities registered with the IRS—now have to do so. If not, the IRS will take steps to revoke their tax-exempt status.
Supporters say the new filing requirement will prevent tax privileges from going to organizations that do not deserve them or may no longer even exist. But many smaller charities are unaccustomed to submitting these reports and unprepared to assemble the necessary information. They may not file and may find themselves newly liable for taxes. If they want their tax exemptions reinstated, they will incur the costs of new filings and legal fees.
With recession-strained budgets, these small charities can ill afford any new expenses. Even more worrisome are some of the larger implications of the growing scrutiny by the IRS and state agencies. ...
Traditionally, the IRS and state regulators have sought mostly to ensure that charities behave charitably, not to pass judgment on the relative value of their activities. Expanding the requirement to file Form 990 could be consistent with the traditional approach, but it may also portend a more worrisome shift toward greater governmental involvement in the affairs of groups whose value lies in their independence from the state.
(Hat Tip: Woody McNair.)
Instead of the usual required summer-reading book, this year’s incoming freshmen at the University of California, Berkeley, will get something quite different: a cotton swab on which they can, if they choose, send in a DNA sample.
The university said it would analyze the samples, from inside students’ cheeks, for three genes that help regulate the ability to metabolize alcohol, lactose and folates.
Those genes were chosen not because they indicate serious health risks but because students with certain genetic markers may be able to lead healthier lives by drinking less, avoiding dairy products or eating more leafy green vegetables.
Berkeley’s program for the class of 2014 is the first mass genetic testing by a university. Jasper Rine, the professor of genetics who is leading the project, said it was designed to help students learn about personalized medicine and identify their own vulnerabilities.
In the December 2008 issue of the Boston University Law Review, Jeffrey Cooper published an article [Empty Promises: Settlor’s Intent, The Uniform Trust Code, and the Future of Trust Investment Law, 88 B.U. L. Rev. 1165 (2008).] in which he criticized both the benefit-thebeneficiaries standard and an article of mine [Mandatory Rules in the Law of Trusts, 98 Nw. U. L. Rev. 1105 (2004)] discussing that standard. My article suggested that the clarification of the rule against capricious purposes found in the Restatement and the UTC would have a salutary effect in one corner of trust investment law, by limiting the power of a trust settlor to insist that the trustee follow investment practices that are demonstrably harmful to the interests of the beneficiaries. Cooper’s article sounds a contrary theme of extreme deference to settlor power. He contends that trust law has allowed the settlor “nearly unfettered latitude” over the terms of the trust, and that trust law should “provide no aid in cases where a settlor intentionally and thoughtfully impaired beneficiaries’ economic rights.”The present Essay responds to Cooper. Part I examines the balance that trust law strikes between implementing the settlor’s donative intent and protecting the interests of trust beneficiaries in the transferred property. Part II probes Cooper’s claims that trust law should not prevent a settlor from requiring trust assets to be invested in a fashion manifestly harmful to the interests of the trust’s beneficiaries.
- Albany: Richard Wesley (Judge, U.S. Court of Appeals for the Second Circuit)
- American: Eric Holder (Attorney General, United States)
- Arizona: Raul Castro (Former Arizona Governor and U.S. Ambassador to Argentina, Bolivia, and El Salvador)
- Arizona State: Rebecca White Berch (Chief Justice, Arizona Supreme Court)
- Arkansas-Fayetteville: Annabelle Imber Tuck (Justice, Arkansas Supreme Court)
- Baltimore: Frank Kratovil (Member, U.S. House of Representatives)
- Baylor: John Hancock (Director, The Blind Side)
- Boston College: Scott Brown (Member, U.S. Senate)
- Boston University: Eric Holder (Attorney General, United States)
- Brooklyn: Michael Bloomberg (Mayor, New York City)
- Campbell: Erwin Chemerinsky (Dean, UC-Irvine)
- Capital: Dennis McCarthy (U.S. Assistant Secretary of Defense for Reserve Affairs)
- Cardozo: Cyrus Vance, Jr. (District Attorney, Manhattan)
- Case Western: Capricia Penavic Marshall (Chief of Protocol, U.S. State Department)
- Catholic: Paul Michel (Chief Judge, U.S. Court of Appeals for the Federal Circuit)
- Chapman: Richard Fybel (Associate Justice, California Court of Appeal)
- Charleston: Kaye Hearn (Justice, South Carolina Supreme Court)
- Chicago: Martha Nussbaum (Professor, Chicago)
- Chicago-Kent: Craig Donohue (CEO, CME Group), Richard Durbin (Member, U.S. Senate)
- Cincinnati: Stephen Markman (Justice, Michigan Supreme Court)
- Colorado: John Hickenlooper (Mayor, Denver)
- Columbia: Eric Holder (Attorney General, United States)
- Connecticut: Linda Greenhouse (Former Supreme Court reporter, New York Times)
- CUNY: Gladys Carrión (Commissioner, New York State Office of Children and Family Services)
- Dayton: Eric Brown (Chief Justice, Ohio Supreme Court)
- Denver: Bill Ritter (Governor, Colorado)
- DePaul: Erwin Chemerinsky (Dean, UC-Irvine)
- Detroit-Mercy: Eugene Gargaro (Former Vice President, Masco Corp.)
- Drake: Jane Lorentzen (President, Iowa State Bar Association)
- Drexel: Carolyn Lamm (President, ABA and Partner, White & Case)
- Duquesne: Frank Coonelly (President, Pittsburgh Pirates)
- Duke: Robert Mueller (Director, FBI)
- Emory: Arnold Schwarzenegger (Governor, California)
- Florida: Stephen Zack (President-Elect, ABA)
- Florida A&M: Jesse Jackson, Sr. (Founder & President, Rainbow/PUSH Coalition)
- Florida State: Mary Scriven (Judge, U.S. District Court for the Middle District of Florida)
- Fordham: Mary McAleese (President, Ireland)
- Franklin Pierce: Jeanne Shaheen (Member, U.S. Senate)
- George Mason: William Mims (Justice, Virginia Supreme Court)
- George Washington: Mary Schapiro (Chair, SEC)
- Georgetown: Baroness Brenda Hale (Justice, U.K. Supreme Court)
- Georgia: Walter Dellinger (Professor, Duke)
- Georgia State: David Nahmias (Justice, Georgia Supreme Court)
- Golden Gate: James Brosnahan (Senior Partner, Morrison & Foerster)
- Gonzaga: Richard Jones (Judge, U.S. District Court for the Western District of Washington)
- Hamline: Bud Philbrook (Former Deputy Under Secretary of Agriculture for Farm and Foreign Agricultural Services)
- Harvard: Samantha Power (Professor, Kennedy School of Government)
- Hawaii: William Kenoi (Mayor, Hawaii County)
- Hofstra: Dora Schriro (Commissioner, New York City Department of Corrections)
- Houston: Rudy Giuliani (Former Mayor, New York City)
- Illinois: James Holderman (Chief Judge, U.S. District Court for the Northern District of Illinois)
- Indiana-Bloomington: John Tinder (Judge, U.S. Court of Appeals for the Seventh Circuit)
- John Marshall (Atlanta): Clarence Thomas (Justice, U.S. Supreme Court)
- Kansas: Bernadette Gray-Little (Chancellor, Kansas)
- La Verne: Irene Khan (Former Secretary General, Amnesty International)
- Lewis & Clark: Roberta Cooper Ramo (President, American Law Institute)
- Louisville: Tori Murden McClure (President, Spalding University)
- Loyola-Chicago: Susan Sher (Chief of Staff to First Lady Michelle Obama)
- Loyola-L.A.: Richard Tallman (Judge, U.S. Court of Appeals for the Ninth Circuit)
- LSU: James Carville (political consultant)
- Maine: William Cohen (Former Member, U.S. Senate & former Secretary of Defense)
- Maryland: Andre Davis (Judge, U.S. Court of Appeals for the Fourth Circuit)
- Miami: Laurence Tribe (Professor, Harvard)
- Michigan: Valerie Jarrett (White House Advisor)
- Michigan State: Diane Hathaway (Justice, Michigan Supreme Court)
- Minnesota: Amy Klobuchar (Member, U.S. Senate)
- Nebraska: William Riley (Judge, U.S. Court of Ppeals for the Eighth Circuit)
- New England: John Broderick (Chief Justice, New Hampshire Supreme Court)
- New York Law School: Jonathan Lippman (Chief Judge, New York Court of Appeals)
- North Carolina: Bryan Stevenson (Executive Director, Equal Justice Initiative)
- North Dakota: Mary Maring (Justice, North Dakota Supreme Court)
- Notre Dame: Michael Kirsch (Tax Professor, Notre Dame)
- Northeastern: Harold Koh (Legal Advisor, U.S. State Department; former Dean, Yale)
- Ohio Northern: Robert Cupp (Justice, Ohio Supreme Court)
- Oklahoma City: Brad Henry (Governor, Oklahoma)
- Oregon: Ricardo Urbina (Judge, U.S. District Court of Washington, D.C )
- Pace: Lisa Jackson (Administrator, EPA)
- Pennsylvania: Jeffrey Toobin (Legal Analyst, CNN)
- Pepperdine: Blake Morant (Dean, Wake Forest)
- Penn State: Tom Ridge (Former Pennsylvania Governor and Secretary of Homeland Security)
- Pittsburgh: Gordon Bonnyman (Executive Director, Tennessee Justice Center)
- Quinnipiac: Chase Rogers (Chief Justice, Connecticut Supreme Court)
- Richmond: James Spencer (Chief Judge, U.S. District Court for the Eastern District of Virginia)
- Roger Williams: Jan Schlichtmann (Attorney, subject of A Civil Action)
- Rutgers-Camden: Stuart Levey (Under Secretary of the Treasury, Terrorism & Financial Intelligence)
- Rutgers-Newark: Stuart Rabner (Chief Judge, New Jersey Supreme Court)
- St. John's: Denny Chin (Judge, U.S. Court of Appeals for the Second Circuit)
- St. Mary's: David Ezra (Judge, U.S. District Court for the District of Hawaii)
- San Diego: Leonard Armato (Chief Marketing Officer, Skechers)
- Seton Hall: Chris Christie (Governor, New Jersey)
- SMU: Edward Rust (Chairman & CEO, State Farm Mutual Automobile Insurance Co.)
- South Carolina: William Hubbard (Partner, Nelson Mullins Riley & Scarborough)
- South Dakota: Glen Severson (Justice, South Dakota Supreme Court)
- South Texas: Elisa Massimo (President & CEO, Human Rights First)
- Southern Illinois: Gary Grindler (Deputy Attorney General, United States)
- Stetson: Bryan Garner (Editor in Chief, Black's Law Dictionary)
- Suffolk: Cory Booker (Mayor, Newark, NJ)
- SUNY-Buffalo: Randall Kennedy (Professor, Harvard)
- Syracuse: Ellen Zimiles (Co-founder & CEO, Daylight Forensic & Advisory, LLC)
- Temple: Carolyn Lamm (President, ABA and Partner, White & Case)
- Texas: Paul Begala (political consultant)
- Texas Southern: Carl Stewart (Judge, U.S. Court of Appeals for the Fifth Circuit)
- Texas Tech: Mark Lanier (Founder, The Lanier Law Firm)
- Texas-Wesleyan: Frank Elliott (Founding Dean, Texas-Wesleyan)
- Thomas Cooley: Marilyn Kelly (Chief Justice, Michigan Supreme Court)
- Thomas Jefferson: Jerry Sanders (Mayor, San Diego)
- Touro: Fern Fisher (Justice, New York Supreme Court)
- Tulane: Anderson Cooper (Anchor, CNN)
- UC-Berkeley: Donna Ryu (Judge, U.S. District Court for the Northern District of California)
- UC-Davis: Paul Igasaki (Chairman & Chief Judge, U.S. Department of Labor Administrative Review Board)
- UC-Hastings: Tony West (Assistant Attorney General, United States)
- UCLA: Stephen J. Rapp (U.S. Ambassador for War Crimes Issues)
- USC: Howard Miller (President, California Bar)
- Valparaiso: William Hoehner (Vice President & Director of Litigation, Jacobs Engineering Group)
- Vermont: Howard Dean (Former Vermont Governor, presidential candidate, and DNC chair)
- Villanova: Richard Trumka (President, AFL-CIO)
- Virginia: Sheldon Whitehouse (Member, U.S. Senate)
- Wake Forest: Lord Phillips (President, U.K. Supreme Court)
- Washburn: Duke Dupre (Former Vice President & General Counsel, SBC Communications)
- Washington & Lee: Carolyn Lamm (President, ABA and Partner, White & Case)
- Washington University: Strobe Talbott (President, Brookings Institution)
- Wayne State: Harold Koh (Legal Advisor, U.S. State Department; former Dean, Yale)
- Western New England: Frank J. Macchiarola (Chancellor, St. Francis College)
- Whittier: Tony Rackauckas (District Attorney, Orange County)
- Widener: Pedro Cortés (Secretary, Pennsylvania)
- William & Mary: Sandra Day O'Connor (Former Justice, U.S. Supreme Court)
- Wisconsin: Jim Doyle (Governor, Wisconsin)
Prior TaxProf Blog coverage:
An agreement has fallen apart on an estate tax proposal that had appeared resolved between Senate Democrats and Republicans, a lead negotiator said Tuesday. Senate Minority Whip Jon Kyl (R-Ariz.) said the accord, which was all but forged a week ago, began to dissolve Monday night and broke down Tuesday after talks between leaders in both parties. ...
Kyl hasn't disclosed the proposal's details, but sources have told The Hill that lawmakers were looking to give taxpayers the option of prepaying their estate tax. The levy would be set at 35% for those worth more than $3.5 million. However, the exemption would ultimately increase over time to $5 million and wouldn't be indexed for inflation. Prepayment trusts would pay a lower rate. ... It was unclear how the gift tax would be addressed but Kyl has said he would like the rate to mirror the estate tax.
The House recently passed legislation creating a 45% tax on estates worth more than $3.5 million.
- Wall Street Journal, US Senate Effort To Reduce Estate Tax Hits Turbulence
The Committee will discuss the current tax laws and reporting requirements applicable to wagering in the United States. The Committee will consider tax and other proposals in the Committee’s jurisdiction related to legislation pending in the Congress to license and regulate Internet gambling activities.
- Barney Frank (U.S. Representative, Massachusetts)
- Jim McDermott (U.S. Representative, Washington)
- Bob Goodlatte (U.S. Representative, Virginia)
- Christopher Wagner (Commissioner, Small Business Self- Employed Division, IRS)
- Rebecca Sparkman (Deputy Director for Operations, Criminal Investigation Division, Treasury Department)
- Charles M. Steele (Deputy Director, Financial Crimes Enforcement Network, Treasury Department)
In connection with the hearing, the Joint Committee on Taxation has released Overview of Federal Tax Laws and Reporting Requirements Relating to Gambling in the United States:
The United States gambling industry generated more than $92 billion in revenue in 2007. This includes commercial casinos operating in 12 States, casinos operating on Indian tribal lands in 28 States, State lotteries operating in 42 States, and racetrack casinos operating in 12 States.
Part I provides a general overview of legal gambling operations in the United States, State taxation of gambling, and Internet gambling. The legal gambling market includes revenues from commercial casinos, Indian tribal casinos, State lotteries, pari-mutuel wagering, and other types of gambling which are discussed in this part.
Part II summarizes the Federal income taxation of gambling. This part includes the individual taxation of gambling winnings, the special limitation on gambling losses, the tax implications related to domestic and foreign persons engaged in a gambling business, and considerations related to the taxation of Internet gambling operations.
Part III describes the various reporting and withholding obligations imposed on gambling operators, casinos, and individuals. Generally, gambling proceeds are subject to 25 percent withholding if the amount exceeds $5,000 and is at least 300 times the amount wagered. In addition, proceeds from gambling are generally subject to information reporting if the amount exceeds $600 and is at least 300 times the amount wagered. Additionally, special rules applicable to certain types of gambling proceeds are discussed in this part.
Part IV provides an overview of the existing wagering and occupational taxes that are applicable to wagering in the United States. The excise tax imposed is 0.25 percent of a wager authorized under State law, and two percent of any unauthorized wager.
Part V summarizes the Federal tax and regulatory treatment of gaming of Indian tribes and Indian tribe members.
Part VI summarizes legislation pending in the United States Congress to license, regulate and tax Internet gambling activities.
David Elkins (Netanaya College School of Law, Israel; Visiting Professor, SMU) has posted Redistributive Taxation and the Constitutional Protection of Property, in Bridging a Sea. Constitutional and Supranational Limitations to Taxing Powers of the States Across the Mediterranean Sea (Aracne Editrice, 2009), on SSRN. Here is the abstract:
The Fifth Amendment to the Constitution provides that private property shall not be taken for public use without just compensation. Richard Epstein has argued that redistributive taxation violates the provisions of this Amendment, and that only a proportional income tax would pass constitutional muster.
Epstein's argument has generated a great deal of criticism. However, most critics take issue with his arguments on the merits. They claim that the Fifth Amendment was never intended to limit Congress' taxing power, that his interpretation of Locke is incorrect, that even under Epstein's assumptions a progressive income tax is more appropriate, that his arguments are populist and not academic and so forth.
The thesis of the Article is that whatever the merits of Epstein's arguments, they cannot form the basis for judicial review of redistributive taxation. The question of whether (and if so, the extent to which) the Constitution proscribes redistribution is political in nature and is not addressable in a judicial forum.
Before considering the political question doctrine, the Article considers an alternative answer to Epstein: that taxation is inherently a violation of private property and that by conferring on Congress the taxing power, the Constitution implicitly freed that power from the restrictions of the Taking clause. Part II rejects this answer by showing that only redistributive taxation can be considered a violation of the Fifth Amendment's Takings clause. This analysis serves only to strengthen Epstein's argument.
Tuesday, May 18, 2010
IRS to Provide Guidance to Charities That Missed Yesterday's Deadline to Maintain Their Tax-Exempt Status
Now that the May 17 filing deadline has passed, it appears that many small tax-exempt organizations have not filed the required information return in time. These organizations are vital to communities across the United States, and I understand their concerns about possibly losing their tax-exempt status.
The IRS has conducted an unprecedented outreach effort in the tax-exempt sector on the 2006 law’s new filing requirements, but many of these smaller organizations are just now learning of the May 17 deadline. I want to reassure these small organizations that the IRS will do what it can to help them avoid losing their tax-exempt status.
The IRS will be providing additional guidance in the near future on how it will help these organizations maintain their important tax-exempt status — even if they missed the May 17 deadline. The guidance will offer relief to these small organizations and provide them with the opportunity to keep their critical tax-exempt status intact.
So I urge these organizations to go ahead and file — even though the May 17 deadline has passed.
A little-known provision in the United States’ divisive new health care reform package might be effective in reducing tanning bed use. The legislation imposes a 10% tax on indoor tanning to help pay for health care reform. The bill originally taxed cosmetic surgery at 5% — a so-called “Bo-tax” — but opposition from medical and dermatological circles led Congress to a tanning tax instead.
The tanning tax has faced opposition from the industry and tanning aficionados alike. Research suggests that if it resembles other so-called “sin taxes,” it just might reduce the use of tanning beds.
Taxes on environmental and social ills, from plastic bag use to obesity, do reduce consumption; one study found that taxing junk food was more effective at improving diet quality than subsidizing fruits and veggies. And there’s plenty of research to support the contention that sin taxes reduce substance use, even for addicts. ...
Another paper published this year reviewed 72 studies to determine whether making it more expensive to drink might reduce the bad effects of drinking. The researchers found that as the tax or price on alcohol increased, both excessive drinking and poor health due to drinking decreased.
Whether or not the tanning tax reduces indoor tanning, it might make tanners feel better about their habit. The National Bureau of Economic Research found that smokers are actually happier when cigarette taxes are higher. James Sadowsky, professor of philosophy at Fordham University, writes, some smokers and moderate drinkers like sin taxes because they make them feel less guilty for their actions.
Still, while it appears that a tax on tanning may be just what the dermatologist ordered, it’s important to remember the irony inherent in taxing sin: If the taxes actually discourage “sinful” behavior, they stop being lucrative. In other words, if the tanning tax actually helps addicts kick the habit, it probably won’t succeed in raising the $2.7 billion it’s supposed to generate.
(Hat Tip: Allison Christians.)
American nonprofit organizations receive favorable tax treatment, including tax exemptions and tax-deductibility of contributions, in return for their devotion to charitable purposes and restrictions not to distribute profits. Recent efforts to extend some or all of these tax benefits to for-profit companies making social investments, including the creation of the new hybrid nonprofit/for-profit company form known as the Low-Profit Limited Liability Company, threaten to undermine the vitality of the nonprofit sector and the integrity of the tax system.Reform advocates maintain that the ability to compensate executives based on performance and to distribute profits when attractive investment opportunities are scarce makes for-profit entities more efficient than nonprofit counterparts. Offering more favorable tax treatment to for-profits engaging in charity would encourage greater charitable entrepreneurship, the argument goes, and provide worthwhile competition for the nonprofit sector. As matters stand, however, nonprofits can and occasionally do reward executives with performance-based compensation, and their nondistribution rules impose no obligation to make subpar investments. The existing nonprofit sector is extremely competitive, and the charitable activities of for-profits already receive favorable tax treatment. Going further and offering socially active for-profits the tax benefits equivalent to those available currently to nonprofits would create opportunities for tax arbitrage by providing tax deductions to high-bracket donors and taxable income for lightly taxed recipients. The difficulty of policing lines between nonprofit and for-profit activities of the same business entities would entail significant administrative complexity and is unlikely ultimately to succeed. And even should it succeed, the costs of offering new tax benefits to for-profit charities include not only foregone tax revenues, but also spillover effects on the charitable activities of nonprofits.
Brian Leiter (Chicago) has finalized his ranking of the Highest Impact Faculty in 13 Areas of Specialization, including tax, as measured by citations during the past five years (Jan. 1, 2005 - Jan. 15, 2010):
Michael Graetz (Yale)
Daniel Shaviro (NYU)
David Weisbach (Chicago)
Edward McCaffery (USC)
Reuven Avi-Yonah (Michigan)
Edward Zelinsky (Cardozo)
Lawrence Zelenak (Duke)
Joseph Bankman (Stanford)
Victor Fleischer (Colorado)
Leandra Lederman (Indiana)
Nancy Staudt (Northwestern)
Marjorie Kornhauser (Arizona St.)
Calvin Johnson (Texas)
Deborah Schenk (NYU)
David Schizer (Columbia)
Howard Abrams (Emory)
Anne Alstott (Harvard)
Thomas Griffith (USC)
Highly-cited scholars whose cites are not exclusively in this area:
- Louis Kaplow (Harvard) (age 54), 970 citations
- Kristin Hickman (Minnesota) (age 40), 230 citations
- Mark Gergen (UC-Berkeley) (age 54), 210 citations
- Kyle Logue (Michigan) (age 45), 180 citations
In our article, Pursuing a Tax LLM Degree: Where?, Jennifer M. Kowal (Loyola-L.A.), Katherine Pratt (Loyola-L.A.), Theodore P. Seto (Loyola-L.A.) and I used a variation of Leiter's methodology in conducting a citation count study of the faculty in the thirteen graduate tax programs ranked at least once in the U.S. News tax rankings over the past four years (pp. 28-29):
Graduate Tax Program Faculty
Prior TaxProf Blog coverage:
- The 15 Most-Cited Tax Faculty (Apr. 5, 2010)
- More on Faculty Citation Rankings (Nov. 28, 2007)
- The Most-Cited Tax Faculty (Nov. 16, 2007)
- Ten Most-Cited Tax Faculty (Aug. 20, 2007)
In our article, Ranking Law Schools: Using SSRN to Measure Scholarly Performance, 81 Ind. L.J. 83, 120-22 (2006), Bernie Black (Northwestern) and I examined the Top 25 tax faculty as measured by SSRN downloads, a practice I update monthly on TaxProf Blog.
Bradley Center Hosts Discussion Today on Ray Madoff's Immortality and the Law: The Rising Power of the American Dead
A donor may set up a charitable foundation in perpetuity, and the foundation’s trustees are obligated to carry out the donor’s intent. These two defining features of the American legal system afford donors a form of immortality, writes Boston College law professor Ray D. Madoff in her new book, Immortality and the Law: The Rising Power of the American Dead (Yale University Press, 2010). But when current needs are effectively surrendered to the “dead hand” of the past, and when that trend is driven not by the wishes of the dead so much as by the living who stand to benefit the most – trustees, bankers, and financial services companies, society and the donor himself or herself ultimately lose, Madoff argues.
Hudson Institute’s Bradley Center will gather a panel of experts to discuss the issues raised in Madoff’s book: Is it impossible to prevent donor intent from being corrupted? To what extent should it be honored after a donor’s death? Who should decide? Panelists will include author Ray Madoff herself, as well as Suzanne Garment of Indiana University’s Center on Philanthropy, GuideStar International’s Arthur “Buzz” Schmidt, and Jeffrey Cooper of Quinnipiac University School of Law. The Bradley Center’s William Schambra will moderate the discussion.