Tax Presentations At Society Of Legal Scholars Annual Conference

U.S. Tax Prof presentations at the Society of Legal Scholars' Annual Conference at the University of Bristol:

Alex Zhang (Emory; Google Scholar), Fiscal Autonomy and the Legacy of Imperialism:

Within the United States, two subnational governments have distinctive powers to tax: Native tribes and U.S. territories. Native tribes can tax their own members and the commercial activities of non-Indian actors on reservations. The Supreme Court has grounded this power in both tribal sovereignty and the federal objective of fostering tribal self-governance. But its jurisprudence—in the form of preemption, plenary power, and tax doctrine—has hollowed out the Native tax base, forcing tribes to compete fiercely with Congress, states, and localities for revenue. By contrast, the U.S. territories face no tax competition. Their residents are generally exempt from federal income and estate taxes, and Congress has even delegated to some territories the authority to deviate from federal income-tax rules. Pursuant to this delegation, Puerto Rico has enacted a host of tax incentives to attract the ultra-wealthy to migrate from the mainland, fueling accusations of tax shelter and settler colonialism. The divergent tax treatment of Native and territorial communities paradoxically rests on the same rationale: fiscal autonomy.

This Article makes three main contributions.  First, it provides the first systematic study of subnational taxation beyond states and localities.  It shows how distinct institutional cultures, collision of interpretive principles, and warring conceptual models have constrained tribal fiscal capacity while enlarging territorial discretion to tax.  Second, the Article contends that fiscal autonomy is a twofold concept, encompassing first-order taxing power and second-order democratic governance.  Robust authority to tax by subnational governments demands adherence to the citizens’ vision of distributive justice in fashioning tax policy.  Under this framework, judicial limits on tribal taxing power are misguided.  By contrast, the territories’ wide latitude in designing revenue streams merits heightened scrutiny.  Third, the Article puts forth policy recommendations.  Doctrinal solutions include developing a broader view of Native sovereignty to preclude overlapping tax jurisdictions.  As to tax policy, a promising path forward is to provide a uniform, nonrefundable tax credit for all tribal and territorial taxes paid.

Michael Hatfield (Washington; Google Scholar), Tax in Law Schools:

At the 2023 Association of American Law Schools Tax Section meeting, in reaction to presentations on the tax profession and tax education, law professors from across the US shared their impressions that there were significantly fewer students studying tax in recent years.  There had been no research on tax education in US law schools.  However, across the Atlantic, a few months before, at the 2022 Tax Research Network conference, Dr. Stephen Daly and Dr. Amy Lawton had presented their research on “the temperature of tax teaching in the UK,” showing that the number of law schools in the UK that teach tax declined 43% between 2002 and 2022.

What is the temperature of tax teaching in US law schools?  This project partially answers that question by reporting on enrollment in Federal Tax, Business Entities Tax, Corporation Tax, and Partnership Tax at 40 flagship law schools between the 2012/2013 and 2021/2022 academic years, and reporting on the number of tax faculty at the schools during those years. The underlying data come from a review of those schools' course catalogs, American Bar Association-mandated disclosures, the Association of American Law Schools Directory of Law Teachers, and through open records act requests.

The data show enrollment decreases in Federal Tax (-37%), Corporate Tax (-27%), and Business Entities Tax (-41%) but an increase in Partnership Tax (+14%).  The decrease in Federal Tax was statistically associated with increased subject offerings and decreased enrollment of male law students. The number of tax professors was steady across the decade.

This research is intended to help tax professors assess the situation in their own schools, and to motivate working together across disciplines and jurisdictions to ensure tax expertise remains adequately available for both taxpayers and tax agencies. 

Henry Ordower (St. Louis; Google Scholar), The Taxpayer Choice Dilemma: Benefit to Affluent, Barrier to Uniform Taxation:

Through a series of hypothetical case studies, this paper will highlight the problem of individual taxpayer choice and recommend approaches to limiting choice and, in appropriate policy instances, substituting non-tax alternatives. Taxpayer choice leads to non-uniform taxation and distribution because choices differ within a single jurisdiction and among taxing jurisdictions.

The paper will argue that the taxpayer choice opportunities increase with the taxpayer’s resources for tax planning. An outsized tax planning industry has emerged to meet the consumer demand for tax planning services. That industry produces a broad range of tax products that are designed to stymy collection of tax revenue by identifying flaws and fundamental inconsistences in tax legislation that enable taxpayers to make tax-based structural choices. Deployment of such products assists taxpayers in choosing among various possible transactional structures to diminish their tax burdens.

The tax planning industry opportunistically capturing available taxpayer choice has led legislatures to impose and increase tax burdens on taxpayers with the fewest choices – generally the less affluent members of the community. Limiting the adverse impact of taxpayer choice on revenue collection has caused a general shift of tax burdens from capital to labor. That shift is contrary to historical ability to pay principles of taxation. Simultaneously, tax competition through jurisdictional choice has targeted affluent taxpayers and their mobile capital. Accordingly, the paper observes that unless the international tax community focuses on limiting individual taxpayer choice, global tax uniformity essential to revenue stability and adequacy will remain elusive and become even more elusive as the individual’s physical location becomes increasingly mutable and irrelevant to taxing jurisdiction.

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