Duke Symposium: Law And Macroeconomics

Symposium, Law and Macroeconomics, 83 Law & Contemp. Probs. 1-232 (2020):

• Anna Gelpern (Georgetown) & Adam J. Levitin (Georgetown), Considering Law and Macroeconomics, 83 Law & Contemp. Probs. i (2020)
• Daniel K. Tarullo (Harvard), Time-Varying Measures in Financial Regulation, 83 Law & Contemp. Probs. 1 (2020)
• Patricia A. McCoy (Boston College) & Susan M. Wachter (Wharton), The Macroprudential Implications of the Qualified Mortgage Debate, 83 Law & Contemp. Probs. 21 (2020)
• Erik F. Gerding (Colorado), Against Regulatory Stimulus, 83 Law & Contemp. Probs. 49 (2020)
• Morgan Ricks (Vanderbilt), Money, Private Law, and Macroeconomic Disasters, 83 Law & Contemp. Probs. 65 (2020)
• Daniel Hemel (Chicago), Indexing, Unchained, 83 Law & Contemp. Probs. 83 (2020)
• Nadav Orian Peer (Colorado), Public Purpose Finance: The Government’s Role as Lender, 83 Law & Contemp. Probs. 101 (2020)
• Gina-Gail S. Fletcher (Indiana), Macroeconomic Consequences of Market Manipulation, 83 Law & Contemp. Probs. 123 (2020)
• Yair Listokin (Yale), Law and Macro: What Took So Long?, 83 Law & Contemp. Probs. 141 (2020)

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Aprill: Revisiting Federal Tax Treatment Of States, Political Subdivisions, And Their Affiliates

Ellen P. Aprill (Loyola-L.A.), Revisiting Federal Tax Treatment of States, Political Subdivisions, and their Affiliates, 23 Fla. Tax Rev. 73 (2019):

Several provisions of the 2017 tax legislation, known as Tax Cuts and Jobs Act (TCJA), focused attention on federal taxation of states, their political subdivisions and their affiliates. Most prominently, TCJA limited the federal income tax deduction for state and local taxes to $10,000. States have sued and attempted work-arounds. Another provision, which imposes an excise tax of 21% on “excessive compensation” paid by certain entities not subject to income tax, inadvertently failed to subject to tax entities that are integral parts of states or political subdivisions or are themselves political subdivisions. Calls for a technical correction have so far gone unheeded.

More than twenty years ago, I wrote two articles about federal taxation of state governments, political subdivisions, and their affiliates. The Teacher’s Manual to a leading casebook on nonprofit organizations describes these two articles as “as much as anyone knows about this confusing patchwork and its ramifications.” The passage of time, changes in my own thinking and new developments call for my returning to this topic. I do so here. Moreover, far more than in my earlier work, I examine the applicable rules regarding charitable contribution deductions to these entities as well as discuss the special rules applicable to governmental charities and the category of charities that lessen the burdens of government.

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Applications Surge To Law Schools (+32%) And Medical Schools (+18%)

Following up on my previous posts (links below):  Inside Higher Ed, Applications Jump to Law and Medical School:

This is the year for admissions officers to worry about enrollments. Undergraduate enrollment is down 4.4 percent, according to the latest data from the National Student Clearinghouse Research Center. Freshman enrollment is down 13 percent. Community college freshman enrollment is down 19 percent.

Graduate enrollment is up modestly, at 2.9 percent.

But law school applications are surging, and some signs suggest that medical school applications are as well. While the application cycle for neither sector is over yet, the numbers have officials encouraged.

Kellye Y. Testy, president and CEO of the Law School Admission Council, said that applications are up 32 percent from this point last year. And there are more applications for each applicant, with the average student applying to six law schools instead of five. Applications are up across geographic boundaries and LSAT scores.

For medical schools, the Association of American Medical Colleges didn't see a significant increase in the number of students who took the MCAT in the last year (only about 2 percent). But applications to medical schools are up 18 percent compared to a year ago. ...

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Law Prof Uses Technology To Meaningfully Connect With Her Students During COVID-19

ABA Journal, Law Prof Finds Ways to Connect Remotely Amid Historic Election and COVID-19 Restrictions:

April Dawson, an associate dean and professor at the North Carolina Central University School of Law, misses seeing her constitutional law students in person. ... But the constitutional law and voting rights scholar has been finding creative ways to use technology ... [to] connect with students and foster meaningful discussions, even when classes can’t meet in person.

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Lesson From The Tax Court: The Right Way To Do Conservation Easements

Over 40 years ago, Congress modified §170 to permit deductions for donations of partial interests in land when such donations advanced an important public purpose such as protecting environmentally or historically important land from development.  Starting in the early 2000’s, however, developers and tax shelter promoters began exploiting conservation easements to provide huge tax deductions for donations that provided little or no conservation benefit.  The problem reached the point that the IRS issued Notice 2017-10 which described certain syndicated conservation easement arrangements and listed them as tax shelter transactions. This informative Senate Finance Committee Report from August 2020 details the abuses.

But not all conservation easements are tax shelters.  Kumar Rajagopalan and Susamma Kumar v. Commissioner, T.C. Memo. 2020-159 (Nov. 19, 2020) (Judge Holmes) shows how taxpayers can properly deduct the donation of a conservation easement if they have good planning, good representation, and good luck.  Details below the fold.

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Middleditch & Schwartz | Episode 2: Law School Magic

I started watching Middleditch & Schwartz, an improv show that Rotten Tomatoes rated as the 14th best show or series available on Netflix. Here is the trailer for Episode 2, Law School Magic, based on a prompt from a 1L in the audience who is anxious about her upcoming final exams, especially Contracts.

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Choi, Curtis & Hayashi: Crisis-Driven Tax Law — The Case Of Section 382

Albert H. Choi (Michigan), Quinn Curtis (Virginia) & Andrew T. Hayashi (Virginia), Crisis-Driven Tax Law: The Case of Section 382, 23 Fla. Tax Rev. 1 (2019):

At the peak of the 2008 financial crisis, the Internal Revenue Service (IRS) issued Notice 2008-83 (the Notice), administrative guidance that limited Internal Revenue Code (the Code) section 382, an important tax rule designed to discourage tax-motivated acquisitions. Although styled as a mere interpretation of existing law, the Notice has been widely viewed as an improper exercise of the IRS's authority that undermined its legitimacy. But did the Notice work? There were many extraordinary interventions during the financial crisis that raised questions about eroding the rule of law and the long-term destabilizing effects of bailouts. In a financial crisis, regulators must weigh these real, but distant and uncertain, costs against the immediate benefits of the intervention. Toward that end, we report the first evidence of the effects of limiting Code section 382 during the 2008 financial crisis.

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TaxProf Blog Holiday Weekend Roundup

Thanksgiving:

• WKRP In Cincinnati Thanksgiving Turkey Drop
• NRA Reports Misspending By Executives To IRS
• In High Court Appeal, Ex-Student Alleges Texas Law School's Cheating Scandal Caused His Bad Grades, Dismissal
• Modern Call For A Renewed Commitment To Charitable Giving

Friday:

• Weekly Legal Education Roundup
• Tax Policy In The Trump Administration
• Next Week's Virtual Tax Workshop
• The Future Of Law Schools: COVID-19, Technology, And Social Justice

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• OECD: Taxation And Philanthropy
• Akron's C.J. Peters Is Seventh Law School Dean To Give At Least $100,000 To Students
• Czapanskiy: Tax Policy, Structured Settlements, And Factoring

Sunday:

• Haverford Students Claim Victory As Strike Ends; Administration Agrees To Implement Bias Training, Change Tenure Standards, Create Accountability Body
• From The Texas Cotton Fields To The U.S. Tax Court: The Life Journey Of Judge Vasquez
• Syracuse Law School Will Use Proctoring Software Despite Bias, Security Concerns
• The Top Five New Tax Papers

Haverford Students Claim Victory As Strike Ends; Administration Agrees To Implement Bias Training, Change Tenure Standards, Create Accountability Body

Following up on my previous post, 57% Of Haverford Students Boycott Classes; President Says She Will Resign If 'Adequate Progress' Is Not Made On Racial Justice Demands:

Philadelphia Inquirer, Haverford Students End Strike After Getting Demands Met:

After two weeks, Haverford College students called an end to their strike Wednesday, saying most of their demands aimed at improving campus conditions for Black students and other groups had been met.

Haverford president Wendy Raymond agreed to step down as interim chief diversity officer, as students had called for, and the college will create an accountability group to be sure the college follows through on its promises. The school committed to renovation of the Black Cultural Center, bias training, compensation up to 20 hours for student workers who participated in the strike, and other initiatives around academics and mental health. ...

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From The Texas Cotton Fields To The U.S. Tax Court: The Life Journey Of Judge Vasquez

Mary Theresa Vasquez & Anthony Head, From the Texas Cotton Fields to the United States Tax Court: The Life Journey of Juan F. Vasquez (2020):

The story of the life of the first Hispanic American appointed to serve on the United States Tax Court. An educational and inspirational story of a professional career, the book is accessible to lawyers and laypersons of all ages.

From picking cotton to deciding cases as a Judge on the U.S. Tax Court, the story of Judge Juan Vasquez is told with both pride and humility. The Judge's tenacity and the importance of family, community, and opportunity come through loud and clear, providing both testimony and inspiration. -- Alice G. Abreu, Temple University

Judge Vasquez's journey to one of the most esteemed positions in the practice of tax is an inspiring example of defining your own path through hard work, perseverance, and persistence in the face of adversity. -- Lany L. Villalobos, Dechert LLP

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Syracuse Law School Will Use Proctoring Software On Final Exams Despite Bias, Security Concerns

The Daily Orange, College of Law Will Use Proctoring Software Despite Bias, Security Concerns:

Syracuse University’s College of Law will begin using a controversial test proctoring software, despite concerns from students and experts that the software is discriminatory and prone to security breaches.

Most law students learned that the college would be using the software, called Proctortrack, to administer this fall’s final exams in a Nov. 2 email from the registrar. Others heard about the software from their professors, some of whom refuse to use it because of security risks and bias.

Proctortrack, an anti-cheating software, uses remote-monitoring technology to collect audio and video and document students’ web activity as they take exams. The software also scans faces, knuckles and student’s IDs to verify students’ identities.

Verificient Technologies, the New York-based company that developed and licenses Proctortrack, has been criticized by students and technology experts following a series of recent security breaches at other schools and colleges. Rutgers is one of multiple universities that halted exams following a Proctortrack breach, one where hackers masqueraded as company employees to gain access to Verficient’s servers. ...

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The Top Five New Tax Papers

This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

1. [447 Downloads]  State Aid: The General Court Decision in Apple, by Stephen Daly (King's College London) & Ruth Mason (Virginia) (reviewed by Young Ran (Christine) Kim (Utah) here)
2. [304 Downloads]  Federal Tax Procedure (2020 Practitioner Ed.), by John Townsend
3. [272 Downloads]  Intangibles and the Transfer Pricing Reconstruction Rules: A Case Study of Amazon, by Antony Ting (Sydney)
4. [190 Downloads]  An Analysis of Vice President Biden’s Economic Agenda: The Long Run Impacts of Its Regulation, Taxes, and Spending, by Timothy Fitzgerald (Texas Tech), Kevin Hassett (Hoover Institution), Cody Kallen (Wisconsin) & Casey Mulligan (Chicago)
5. [170 Downloads]  Why Is So Much Redistribution In-Kind and Not in Cash? Evidence from a Survey Experiment, by Zachary Liscow (Yale) & Abigail Pershing (J.D. 2020, Yale)

This Week's Ten Most Popular TaxProf Blog Posts

1. Edward Lane (Albany) & L. Randall Wray (UMKC), It Is Time to Eliminate Federal Corporate Income Taxes
2. Paul Caron (Dean, Pepperdine), Fall 2021 Law School Admissions At The Quarter-Pole: Applicants Are Up 32%, With Biggest Increases Among The Highest LSAT Bands And Applicants Of Color
3. U.S. News & World Report, 2021 Tax Rankings
4. ABA, Council Permits Law Schools To Use Pandemic As Excuse For Failing 75% Within 2 Years Bar Passage Accreditation Standard
5. Bryan Camp (Texas Tech), Lesson From The Tax Court: International Pilot’s Tax Home Argument Does Not Fly
6. Paul Caron (Dean, Pepperdine), October 2020 Florida Bar Exam Results: Florida International Is #1 For 6th Year In A Row
7. Marquette Wire, Marquette Faculty Stage Sickout Over Proposed Budget Cuts, Cancel Numerous Classes
8. Cato Institute, Americans Increasingly Are Leaving High-Tax States For Low-Tax States
9. Chronicle of Higher Education, Colleges Have Shed 10% Of Their Employees Since The Pandemic Began
10. Press Release, Vanderbilt's Chris Guthrie Is Sixth Law School Dean To Give At Least $100,000 To Students

OECD: Taxation And Philanthropy

OECD, Taxation and Philanthropy (2020) (press release):

This report provides a detailed review of the tax treatment of philanthropic entities and philanthropic giving in 40 OECD member and participating countries. The report first examines the various arguments for and against the provision of preferential tax treatment for philanthropy. It then reviews the tax treatment of philanthropic entities and giving in the 40 participating countries, in both a domestic and cross-border context. Drawing on this analysis, the report then highlights a range of potential tax policy options for countries to consider.

Foreword
Executive Summary
1. Introduction
2. The case for providing tax concessions for philanthropy
3. The tax treatment of philanthropic entities
4. The tax treatment of giving
5. The tax treatment of cross-border philanthropy
6. Conclusions and policy options

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Akron's C.J. Peters Is Seventh Law School Dean To Give At Least $100,000 To Students

Press Release:

To help make an Akron Law degree even more affordable—and to honor the legacy of his late grandfather, a longtime Michigan trial judge—[Akron Dean Christopher J. (C.J.)] Peters has established the Judge Donald T. Anderson Endowed Scholarship for the benefit of Akron Law students. Peters said he hopes its recipients will be inspired, as he has been, by Judge Ander­son’s lifelong dedication to public service and concern for the practical impact of the law, particularly on society’s most vulnerable members.

Prior TaxProf Blog coverage:

• Penn State Dickinson Law Dean Danielle Conway Makes $125,000 Gift For Student Aid During COVID-19 (Aug. 5, 2020)
• Pepperdine Caruso Dean Follows Lead Of Penn State Dickinson Dean In Giving $125,000 To Help Law Students With Emergency Needs (Aug. 11, 2020)
• Deans Double As Donors (Aug. 18, 2020)
• FIU's Antony Page Is Third Law School Dean To Make Major Gift To Students During COVID-19 (Aug. 21, 2020)
• Inspired By Penn State Dickinson Dean, Faculty And Staff Give $27,000 For Law Students (Aug. 26, 2020)
• More Dean Generosity: Who Will Be Next? (Aug. 27, 2020)
• University Of Florida's Laura Rosenbury Is Fourth Law School Dean ($100,000), Neil Buchanan Is Second Tax Prof ($25,001) To Make Major Gifts To Students During COVID-19 (Sept. 2, 2020)

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Czapanskiy: Tax Policy, Structured Settlements, And Factoring

Karen Czapanskiy (Maryland), Tax Policy, Structured Settlements and Factoring: Making Exploitation Easy and Profitable, 93 U. Detroit Mercy L. Rev. 455 (2020):

Secondary sales of streams of income payable under structured settlements of tort claims are such a disfavored transaction that Congress imposed a punitive 40 percent excise tax on them. These “factoring transactions” are disfavored because it is believed that payees are likely to be exploited, to dissipate the lump sum which is paid for the stream of income and to become dependent on taxpayers when payees become indigent as a result. Congress was also persuaded that state courts could keep an eye on the problems, however, so the 40 percent excise tax is excused if the transaction is approved by a state court in a proceeding under a state “Structured Settlement Protection Act” or SSPA.

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Weekly Legal Education Roundup

• ABA Journal, Pandemic Problems May Be Defense For Law Schools Not Meeting Bar Passage Standard
• William J. Carney (Emory), Organizing a Business Law Department Within a Law School
• Paul Caron (Dean, Pepperdine), Fall 2021 Law School Admissions At The Quarter-Pole: Applicants Are Up 32%, With Biggest Increases Among The Highest LSAT Bands And Applicants Of Color
• Paul Caron (Dean, Pepperdine), October 2020 Florida Bar Exam Results: Florida International Is #1 For 6th Year In A Row
• Scott Fruehwald (Legal Skills Prof Blog),  FIU Scores No. 1 on The Florida Bar, Again

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Tax Policy In The Trump Administration

• Bloomberg, Coca-Cola Must Pay Bulk of $3.4 Billion Tax Bill, Court Says
• Bloomberg, Companies With Forgiven PPP Loans Can’t Get Tax Breaks, IRS Says
• Bloomberg, New IRS Restrictions on PPP Loans
• Bloomberg, SALT Cap Workarounds May Catch On in More States After IRS OK
• Bloomberg, Surging Sports Betting Taxes Replenish Sinking State Coffers

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Next Week's Virtual Tax Workshop

Tuesday, December 1: Erin Scharff (Arizona State) will present Revisiting Local Income Taxes virtually at NYU as part of its Tax Policy Colloquium Series. If you would like to attend, please contact Dan Shaviro.

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The Future Of Law Schools: COVID-19, Technology, And Social Justice

Christian Sundquist (Albany), The Future of Law Schools: COVID-19, Technology, and Social Justice, 53 Conn. L. Rev. Online ___ (2020):

The COVID-19 pandemic has laid bare not only the social and racial inequities in society, but also the pedagogical and access to justice inequities embedded in the traditional legal curriculum. The need to re-envision the future of legal education existed well before the current pandemic, spurred by the shifting nature of legal practice as well as demographic and technological change. This article examines the impact of the COVID-19 pandemic on legal education, and posits that the combined forces of the pandemic, social justice awareness and technological disruption will forever transform the future of both legal education and practice.

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WKRP In Cincinnati Thanksgiving Turkey Drop

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NRA Reports Misspending By Executives To IRS

Washington Post, NRA Reports Alleged Misspending by Current and Former Executives to IRS:

After years of denying allegations of lax financial oversight, the National Rifle Association has made a stunning declaration in a new tax filing: Current and former executives used the nonprofit group’s money for personal benefit and enrichment.

The NRA said in the filing that it continues to review the alleged abuse of funds, as the tax-exempt organization curtails services and runs up multimillion-dollar legal bills. The assertion of impropriety comes four months after the attorney general of New York state filed a lawsuit accusing NRA chief executive Wayne LaPierre and other top executives of using NRA funds for decades to provide inflated salaries and expense accounts.

The tax return, which The Washington Post obtained from the organization, says the NRA “became aware during 2019 of a significant diversion of its assets.” The 2019 filing states that LaPierre and five former executives received “excess benefits,” a term the IRS uses to describe executives’ enriching themselves at the expense of a nonprofit entity.

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In High Court Appeal, Ex-Student Alleges Texas Law School's Cheating Scandal Caused His Bad Grades, Dismissal

Texas Lawyer, In High Court Appeal, Ex-Law Student Alleges Texas Law School's Cheating Scandal Caused His Bad Grades, Dismissal:

When justices on the Texas Supreme Court return from Thanksgiving break, one of the first cases they’ll hear asks if an aspiring lawyer can sue for due-process violations because his law school dismissed him for getting poor grades.

But the law student argues there’s more to it, since the case also involves allegations of a cheating scandal where a professor gave students copies of exam questions, details of an investigation by the law school, and claims that the exam fiasco made the plaintiff fail by giving other students an unfair advantage.

The high court previously allowed a law student to claim constitutional violations for his disciplinary dismissal, and this new dispute between former first-year student Ivan Villarreal and Texas Southern University Thurgood Marshall School of Law in Houston asks whether the same cause of action is open to a student who got dismissed for academic reasons.

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Modern Call For A Renewed Commitment To Charitable Giving

Joey Bloodworth (J.D. 2020, USC), Note, Charity for All: A Modern Call for a Renewed Commitment to Charitable Giving, 93 S. Cal. L. Rev. 273 (2020):

This Note will center on the TCJA’s unpopularity, the charitable contribution deduction, and the adverse effect the TCJA is projected to have on charitable giving. It will conclude that now is an optimal time to expand the charitable contribution deduction. The expansion of the charitable contribution deduction would likely be popular for many of the same reasons that the TCJA is currently unpopular. The proposed expansion will also address some of the problems with charitable giving created or exacerbated by the TCJA. ...

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Oei & Osofsky: The Making Of The § 199A Regulations

Shu-Yi Oei (Boston College) & Leigh Osofsky (North Carolina), Legislation and Comment: The Making of the § 199A Regulations, 69 Emory L.J. 209 (2019):

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (socalled “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, we examine empirically this phenomenon of post-enactment commenting by studying the making of the Internal Revenue Code Section 199A regulations—some of the most important regulations implementing the 2017 tax reform.

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It Is Time To Eliminate The Federal Corporate Income Tax

Edward Lane (Albany) & L. Randall Wray (UMKC), Is It Time to Eliminate Federal Corporate Income Taxes?:

As the nation is experiencing the need for ever-increasing government expenditures to address COVID-19 disruptions, rebuild the nation’s infrastructure, and many other worthy causes, conventional thinking calls for restoring at least a portion corporate taxes eliminated by the 2017 Tax Cuts and Jobs Act, especially from progressive circles. In this working paper, Edward Lane and L. Randall Wray examine who really pays the corporate income tax and argue that it does not serve the purposes most people believe.

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Law Grad Who Twice Failed Florida Bar Exam Gets Four Years In Prison For Setting Up Fake Law Firm

Tampa Bay Times, Fake Tampa Lawyer Gets Four Years in Prison For Fraud, Identity Theft:

A woman who posed as an attorney even though she never passed the Bar exam, misleading judges and clients and running up bills in the name of a friend, will spend more than four years in prison, a federal judge decided Wednesday.

Roberta Guedes must serve 4 1/2 years in federal prison, followed by three years of supervised release. Senior U.S. District Judge James S. Moody Jr. also ordered Guedes to undergo mental health treatment and to pay $14,318 in restitution.

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Big Law Avoids ‘Lost Generation’ With Remote First-Year Programs

Bloomberg Law, Big Law Avoids ‘Lost Generation’ with Remote First-Year Programs:

In the past six months, Grace Fernandez graduated from Berkeley Law, took the California bar exam, and started a new job as an associate at Fenwick & West.

She did it all from her childhood bedroom in Phoenix.

“It’s definitely a surreal and unexpected change,” Fernandez said.

Fernandez’s experience isn’t unusual, as Fenwick is one of several Big Law firms to use online communications to bring on their newest batch of associates this fall. Other firms have opted to hold off first-year start dates until early 2021.

That doesn’t mean it’s been easy for human resources departments to integrate first-years, who are often fresh out of law school like Fernandez, into firms’ practices.

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ABA Permits Law Schools To Use Pandemic As Excuse For Failing 75% Within 2 Years Bar Passage Accreditation Standard

At its meeting last Friday, the Council of the ABA’s Section of Legal Education and Admissions to the Bar approved the following accreditation standard changes:

Law schools are normally required to submit their annual Bar Passage Questionnaires each February. Publication of certain information from the Bar Passage Questionnaires is published a few weeks after the deadline. The 2021 Bar Passage Questionnaire is due in February 2021, but changes in the timing and format of many July 2020 Bar Exams, expanded diploma privilege, and limits on the number of graduates who could sit for the bar exam in certain states, as well as the impacts of COVID-19 and recent racial reckonings on minority groups, required the Committee to consider changes in law school reporting for the 2021 Bar Passage Questionnaire. As such, the Committee makes the following recommendations to the Council.

1. Law Schools will complete the 2021 Bar Passage Questionnaire in the same manner they have done so for the last several years. There will be two main changes
   a. Law schools must specifically report the number of graduates admitted to practice via diploma privilege.
   b. There will be two bar passage rates reported. One will include just those graduates who took the bar exam and the other will include graduates who took the bar exam plus those that were admitted via diploma privilege.
2.  Standard 316 will not be suspended.
   a. A Law School that believes certain circumstances related to the COVID-19 pandemic have negatively impacted opportunities for its graduates to sit for the bar exam or its compliance with Standard 316’s two-year bar passage rate will be permitted to share specific information with the Council for the Council’s consideration in determining compliance.
3. The Managing Director’s Office will have discretion to move the Bar Passage Questionnaire deadline from February to April if the timing of the publication of bar exam results from various states makes it challenging for law schools to collect and accurately report bar passage information by the normal February deadline.4
4. The Committee also recommends the Council approve the attached Bar Passage
   Questionnaire. This questionnaire incorporates Recommendation #1, and
   Recommendations #2 and #3 can be communicated to law schools by the Managing
   Director’s Office. 

The Council also approved several changes to the teach-out plans of law schools placed on probation:

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UNC Professor Patricia Bryan Eases Into Retirement

Professor Patricia Bryan Eases Into Retirement:

As Professor Patricia Bryan eases into her retirement, we wanted to look back on her illustrious career.

Bryan joined the Carolina Law faculty in 1982 and serves as the Henry P. Brandis Distinguished Professor of Law. Her teaching and research interests include tax and law and literature. She is the author of Midnight Assassin: A Murder in America’s Heartland (Algonquin 2005, University of Iowa 2007) and the co-editor of Her America: "A Jury of Her Peers" and other Stories, a collection of stories by Susan Glaspell. Bryan has written and spoken extensively about Glaspell’s work. She has also done historical research into several criminal cases from the 19th century and has published articles about them in the Stanford Law Review and the Annals of Iowa. Most recently, she has researched and written about the federal tax exemption and public financing for sports stadiums.

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Duke Receives An A+ In Handling Coronavirus

Los Angeles Times, Duke University Receives An A+ in Handling Coronavirus:

Duke University is sometimes referred to as a pretty good knock-off of fancier schools farther north. But while those ivy-clad universities with smart students, prestigious medical schools and big endowments stayed closed this fall, Duke invited its freshmen, sophomores, some upperclassmen and all of its graduate students to its Durham, N.C., campus for largely in-person classes.

Now, it’s schooling those sniffier schools on how to reopen safely.

Starting Aug. 2 and continuing up to this week, when the Duke campus made a pre-planned reversion to online classes for the remainder of the semester, the university implemented a rigorous testing, tracking and surveillance program for more than 10,000 students. And it has carried out, on a grand scale, an innovative scheme — called pooled testing — that can stretch limited testing resources without forfeiting accuracy or resolution.

For Duke’s returning students, the result has been a relatively safe and almost normal return to learning, at a time when other colleges and universities either shuttered their campuses or ignited community outbreaks as they reopened with scant measures in place to detect or isolate infected students. ...

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Time For A Social Solidarity Tax?

Heinz Klug (Wisconsin), Time for a Social Solidarity Tax?:

Covid-19 is transforming the world, but we do not yet know how much. Across the globe the pandemic has exposed and exacerbated social and economic problems. From medical systems to livelihoods, Covid-19 is revealing how inequality impacts death rates, job losses, education, and housing. In many societies, including the United States, it has also exposed how these gross inequalities fall along racial and ethnic lines, with devastating impacts on marginal individuals, poor and minority communities. This article looks back at the comparative historical experience of wealth taxes and capital levies in Europe and Asia to put the present calls for wealth taxes in perspective and to suggest that a Social Solidarity Tax designed with this history as a guide may be necessary to address the coming economic catastrophe.

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Faulhaber Presents Excess Returns And The Search For Substantial Activities Virtually Today At NYU

Lilian Faulhaber (Georgetown) presents Lost in Translation: Excess Returns and the Search for Substantial Activities virtually at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

Starting in 2010, one international tax reform proposal moved from being a one-page idea in the Obama Treasury’s proposed budget to being one of the OECD’s options for CFC reform to becoming the basis for one of the major international tax reform provisions in the 2017 U.S. tax reform to being considered as part of Pillar Two of the OECD’s current digital tax project. This proposal, for a minimum tax on foreign excess returns, has changed shape with every iteration, and its proponents have justified each version of this differently and defined its various elements differently.

This Article tells the story of the many recent proposals for minimum taxes on foreign excess returns, starting with the Obama Treasury’s brief proposal and ending with the OECD’s current negotiations over digital taxation. This Article highlights the common threads that links all of these rules, and it also shows how differently the drafters of each rule have understood the purpose and design of a minimum tax on foreign excess returns.

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Cooper: Rethinking The Estate Planning Curriculum

Jeffrey A. Cooper (Quinnipiac), Rethinking the Estate Planning Curriculum, 46 ACTEC L.J. (2020):

As a result of recent changes in Federal estate tax law, fewer and fewer clients need sophisticated estate tax planning. Many lawyers are thus spending less time acting as estate tax planners and instead deploying different skills and expertise.

In this brief article, I explore the extent to which law schools are rethinking their curricula as a result.

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Advice To Law Professors Giving Final Exams During COVID-19

LawProfBlawg (Anonymous Professor, Top 100 Law School), Your Compassionate Final Exam:

Some professors are giving short, timed exams while watching their students to assure that they don’t cheat. That means a LOT can go wrong for some students. The shorter the time window, the greater the chances of problems.  Broader and larger windows (more time to work, more flexibility in the time taking the exam) go a long way to mitigate problems. But even that doesn’t eliminate some of the challenges of taking exams in a pandemic.

Some students do not have spaces in which to work, concentrate or think.  They live with parents, family, and roommates. They may not have access to reliable internet. But yeah, you watch the zoom, prof.

Schools are closing for the Thanksgiving break and afterward in anticipation of a (now certain) COVID-19 spike. Great! But, where does one take that incredibly short term final with certain internet? How does one find child care for those definitive three hours? See Law Students In the Age of Coronavirus. It’s not like these problems haven’t been foreseen for a long while. Amazing that there are still discussions about what a final should look like right now. ...

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Acknowledgments As A Window Into Legal Academia

Jonathan I. Tietz (Michigan) & W. Nicholson Price II (Michigan), Acknowledgments as a Window into Legal Academia, 98 Wash. U. L. Rev. 307 (2020):

Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law-review articles to probe the nature of legal knowledge co-production and de facto peer review in legal literature. Using a survey of authors and editors and a textual analysis of approximately thirty thousand law-review articles from 2008 to 2017, we examined the nature of knowledge co-production and peer review in U.S. legal academia.

Our results are consistent with the idea that substantial peer-review-like vetting occurs in the field. We also found evidence that both authors and editors use the information in acknowledgment footnotes as a factor in article submission and selection. Further, the characteristics of acknowledgment footnotes in articles in high-ranking law reviews differ dramatically from those in low-ranking law reviews in ways that are not simply due to differences in article quality.

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Vanderbilt's Chris Guthrie Is Sixth Law School Dean To Give At Least $100,000 To Students

Chris Guthrie, Vanderbilt Dean and John Wade-Kent Syverud Professor of Law, and his partner Tracey George, Vice Provost for Faculty Affairs, Charles B. Cox III and Lucy D. Cox Family Chair in Law and Liberty, and Professor of Political Science, have pledged $100,000 to establish a need-based scholarship in honor of the first African-American men and first African-American woman to graduate from Vanderbilt Law School:

The Harris, Porter & Work Scholarship will recognize Janie Greenwood Harris (LLB ’64), Edward Melvin Porter (LLB ’59) and Frederick Taylor Work, Sr. (LLB ’59), and support students with a demonstrated commitment to civil rights. ...

“We have had the privilege of meeting Janie, Melvin and Fred,” Guthrie explained. “We are in awe of their courage, accomplishments and grace. They make us so proud to be a part of the Vanderbilt Law School community, and we are excited and humbled to be able to recognize them with a scholarship named in their honor.”

This is the second need-based scholarship that George and Guthrie have endowed at the law school. “We are committed to doing what we can to ensure that talented students, regardless of need, are able to study at our law school  because we believe in the power of a Vanderbilt legal education to make a difference,” Guthrie said.

George and Guthrie have also made a gift of $25,000 to support current student initiatives to address issues of racial injustice.

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Stark: The Power Not To Tax

Kirk J. Stark (UCLA), The Power Not to Tax, 69 Am. U. L. Rev. 565 (2019):

Among the most controversial changes in federal tax policy in recent years is the new limitation on the deductibility of state and local taxes—or SALT cap. Introduced as part of the Tax Cuts and Jobs Act of 2017, the SALT cap differentially burdens residents of high-tax “blue states,” prompting some lawmakers to characterize the cap as an act of “economic civil war.” In one of the opening salvos of this “war,” a handful of blue states turned to alternative devices for raising revenue through the use of tax credits for charitable donations to state-designated funds. This strategy, modeled on long-standing “red state” tax credits used to fund private school vouchers, is rooted in the government’s “power not to tax,” understood here as the power to conditionally refrain from imposing taxes in exchange for the taxpayer making some legislatively sanctioned outlay. The introduction of the SALT cap has given new significance to this power not to tax, encouraging state and local lawmakers to devise strategies for funding public goods without utilizing formal tax mechanisms. This Article explores and evaluates the structural features of the law that account for this new state of affairs, as well as the ongoing controversy regarding how best to address the basic discontinuity in the law’s treatment of formal taxation versus conditional reductions in taxation.

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Colleges Have Shed 10% Of Their Employees Since The Pandemic Began

Chronicle of Higher Education, Colleges Have Shed a Tenth of Their Employees Since the Pandemic Began:

September, the traditional start of the fall semester, saw the continuation of historic job losses at America’s colleges just as they sought some return to normalcy amid the coronavirus pandemic.

Preliminary estimates suggest that a net 152,000 fewer workers were employed by America’s private (nonprofit and for-profit) and state-controlled institutions of higher education in September, compared with August, according to the U.S. Bureau of Labor Statistics, which calculates industry-specific employee figures. The net number of workers who left the industry from February to September now sits at around 484,000.

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Americans Increasingly Are Leaving High-Tax States For Low-Tax States

Cato Institute, Will High‐​Tax “Superstar Cities” Finally Need to Consider — Gasp! — Their Residents?:

As my Cato colleague Chris Edwards documented here a couple weeks ago, interstate migration data from the U.S. Census Bureau indicate that state tax policy affects where Americans, especially wealthy ones, are choosing to live and work. The following charts ...  confirm Chris’ initial impressions: in 2018 there was a strong, statistically significant (p‐​values < 0.01) relationship between (1) personal state tax burdens — as measured by either the Tax Policy Center or the Tax Foundation — and (2) net interstate migration (ratio of inflows to outflows):

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Cauble: Presumptions of Tax Motivation

Emily Cauble (DePaul), Presumptions of Tax Motivation, 105 Iowa L. Rev. 1995 (2020):

Rebuttable presumptions are scattered throughout the Internal Revenue Code and the Treasury Regulations. In many cases, they are employed in service of determining a taxpayer’s motive or state of mind. They are not, however, always utilized when motive or state of mind must be assessed. In some contexts, courts are called upon to examine all relevant facts and circumstances in order to divine a taxpayer’s state of mind – which facts are relevant and the weight to be accorded to various facts are not specified ahead of time except to the extent set forth in judicial precedent. At the other extreme, in yet another subset of situations in which tax outcome turns on motive or state of mind, tax law provides that a given fact establishes an irrebuttable presumption of a given motive. In between the two extremes, tax law makes use of a variety of tools including rebuttable presumptions. When a rebuttable presumption is at work, the proof of a specified fact is deemed to establish the existence of a given state of mind, unless the party who is disadvantaged by that state of mind determination presents sufficient evidence to overcome it.

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How California's Projected $54 Billion Deficit Turned Into a $26 Billion Surplus

Los Angeles Times, California Could See a $26-Billion Windfall Followed By Growing Deficits, Analysts Say:

California’s state budget faces a dramatic boom-and-bust period over the next four years, analysts said Wednesday, a roller-coaster period that could begin with a $26-billion tax windfall and later plunge to a projected deficit of $17.5 billion by the middle of 2025.

Though the gradual trend toward budget shortfalls was expected when lawmakers and Gov. Gavin Newsom crafted a state budget in June, the large supply of extra cash — equal to almost 20% of all current-year spending out of California’s general fund — is a surprise, Legislative Analyst Gabriel Petek said.

“Many of us thought that the state revenues were headed for a plunge,” Petek said Wednesday of fears over an economic slowdown sparked by the pandemic. “But as it turns out, revenues have proven to be much more resilient than that.”

In essence, the report issued by analysts [The 2021-22 Budget: California's Fiscal Outlook] said that state officials may have over-corrected in trying to limit spending in the budget year that began on July 1. The budget signed by Newsom was designed to erase a projected $54.3-billion deficit and assumed the recession would lead to a sharp decline in tax revenues. As a result, lawmakers agreed to tap the state’s cash reserves and used one-time spending delays in hopes of staving off deep cuts to funding for schools and social services.

Instead, the state’s tax revenues have remained strong — in part, Petek said, because high-income residents have not suffered any notable setbacks and California’s budget relies heavily on those taxpayers.

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Pace Seeks To Hire Entry Level Or Lateral Tax Prof

Elisabeth Haub School of Law Faculty Hiring Announcement:

The Elisabeth Haub School of Law at Pace University invites applications to fill up to two full-time, academic tenure-track/tenured faculty positions at the rank of assistant professor, associate professor, or professor. The positions will begin in August 2021. Applicants must be committed to providing excellent legal training both in person and online, engaging in meaningful service within the law school and in the broader community, and producing excellent scholarship.

Applicants should have teaching and research interests in any of the following areas: environmental law, natural resources law, sustainable business law, energy and climate law, public health law, contracts law, business law, and tax law. Applicants whose interests cover multiple of these areas are particularly encouraged to apply. We welcome applications from candidates interested in doctrinal, experiential, and/or clinical teaching.

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Some Professors Push Stanford To Boot Conservative Hoover Institution And Its $550 Million Endowment

Los Angeles Times:  COVID-19 Falsehoods Lead Stanford to Examine Ties to Right-Wing Hoover Institution, by Michael Hiltzik:

On Monday, Stanford University took a step that might be career-shattering in almost any field except academia: It formally distanced itself from a faculty member.

The faculty member is Scott Atlas, a neuroradiologist who is a senior fellow at Stanford’s Hoover Institution and a former professor at its medical school. At the moment, Atlas is a leading advisor on the COVID-19 pandemic to President Trump.

“Dr. Atlas has expressed views that are inconsistent with the university’s approach in response to the pandemic,” the university said. ...

Stanford’s statement was couched in the neutral terms common in academic disputes. But it points to an increasingly acrimonious discussion on the Palo Alto campus — whether Stanford should formally distance itself from the Hoover Institution, or at least redefine a relationship that has periodically exploded into political controversy.

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Fall 2021 Law School Admissions At The Quarter-Pole: Applicants Are Up 32%, With Biggest Increases Among The Highest LSAT Bands

Following up on my previous posts on the Fall 2021 law school admissions season:

• 6% Through the Season: Applicants Are Up Over 35%, With Biggest Increases Among The Highest LSAT Bands (Oct. 5, 2020)
• 16% Through the Season:  Applicants Are Up Over 35%, With Biggest Increases Among The Highest LSAT Bands (Nov. 2, 2020)

We are now 25% of the way through Fall 2021 law school admissions season. The number of law school applicants are up 31.7%:

Mike Spivey projects that applicants will be up 28% for the full admissions season, but Jeff Thomas cautions that the increase in applicants may be an illusion because first-time LSAT test-takers are down 3% thus far.

Applicants are up the most in the New England (52.5%), Midwest (48.9%), and Northeast (39.1%); and up the least in the Great Lakes (18.8%), South Central (21.9%), Northwest (27.2%).

Applicants' LSAT scores are up 70.4% in the 170-180 band, 32.7% in the 160-169 band, 19.0% in the 150-159 band, and 10.9% in the 120-149 band:

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Lesson From The Tax Court: International Pilot’s Tax Home Argument Does Not Fly

Douglas H. Cutting v. Commissioner, T.C. Memo. 2020-158 (Nov. 19, 2020) (Judge Pugh), teaches a useful lesson about that puzzling concept called “tax home” as it relates to the §911 foreign earned income exclusion.  Taxpayers can claim the §911 exclusion if their tax home is in a foreign country.  Mr. Cutting's wasn’t, even though his personal home — the place he returned to when not flying — was Thailand, where he lived with his wife and step-daughter.  A tax home, however, is not where the heart is.  Details below the fold.

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NY Times: Trump Tax Write-Offs Are Ensnared In 2 New York Fraud Investigations

New York Times, Trump Tax Write-Offs Are Ensnared in 2 New York Fraud Investigations:

Two separate New York State fraud investigations into President Trump and his businesses, one criminal and one civil, have expanded to include tax write-offs on millions of dollars in consulting fees, some of which appear to have gone to Ivanka Trump, according to people with knowledge of the matter.

The inquiries — a criminal investigation by the Manhattan district attorney, Cyrus R. Vance Jr., and a civil one by the state attorney general, Letitia James — are being conducted independently. But both offices issued subpoenas to the Trump Organization in recent weeks for records related to the fees, the people said.

The subpoenas were the latest steps in the two investigations of the Trump Organization, and underscore the legal challenges awaiting the president when he leaves office in January. There is no indication that his daughter is a focus of either inquiry, which the Trump Organization has derided as politically motivated. ...

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• October 2020 Florida Bar Exam Results: Florida International Is #1 For 6th Year In A Row
• February California Bar Exam Will Be Online; Committee Recommends Provisional Licensure For July 2015-Feb. 2020 Takers Who Scored 1390-1439
• NTA 113th Annual Conference On Taxation

Sunday:

• Father-Daughter Duo Tackles Law School Together At Syracuse
• Penn Regulatory Review: Reforming Federal Income Tax
• Marquette Faculty Stage Sickout Over Proposed Budget Cuts, Cancel Numerous Classes
• The Top Five New Tax Papers

Father-Daughter Duo Tackles Law School Together At Syracuse

WSYR, Father-Daughter Duo Tackles Law School Together at Syracuse University:

It’s not unusual for someone to attend the same school as their parent or even study the same degree, but how about doing all of that at the exact same time?

It’s been the reality for one father-daughter duo taking on Syracuse University’s College of Law together.

“It’s not embarrassing to go to school with your parent,” said Lauren Deutsch.

For Lauren and her father, Scott, it’s actually pretty cool. ...

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Penn Regulatory Review: Reforming Federal Income Tax

Penn Regulatory Review, Reforming Federal Income Tax:

In this week’s Saturday Seminar, scholars discuss income tax law and proposals to change an imperfect system.

• “America taxes wages, not wealth,” Edward McCaffery of the University of Southern California Gould School of Law writes in the Indiana Law Journal [The Death of the Income Tax (or, The Rise of America’s Universal Wage Tax)] ... McCaffery pushes to replace the current income tax structure with a spending tax that “would tax people on what they spend, whether financed by wages or wealth.”
• A wealth tax would apply to an individual’s entire net worth, including bank accounts, stocks, and luxury goods. Some critics argue that such a tax would be unconstitutional because it is a direct tax. All non-income direct taxes must be apportioned based on state population; the federal government cannot collect them directly from the taxpayer. The University of Texas at Austin School of Law’s Calvin H. Johnson, however, that wealth taxes are not direct taxes and are exempt from the apportionment requirement [A Wealth Tax is Constitutional]. ...
• The tax reform debate focuses too much on economic efficiency and too little on promoting equity, argues James R. Repetti of Boston College Law School in an article published in the Florida Tax Review [The Appropriate Roles for Equity and Efficiency in a Progressive Individual Income Tax]. ...

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