Tax Issues In Dr. Pepper's Acquisition Of Keurig

Jeffrey Sheffield (Senior Lecturer, Northwestern; Partner, Kirkland & Ellis), Whose Earnings and Profits? What Dividend? A Discussion Based on the Dr. Pepper - Keurig Transaction, 72 Tax Law. __ (2019):

In July 2018 Dr. Pepper Snapple Group, Inc. (“Dr. Pepper”) acquired all the stock of the Maple Parent Holdings Corp. (better known as “Keurig”) in exchange for Dr. Pepper common stock. The acquisition was unusual in two respects: Dr. Pepper paid its shareholders a pre-merger “special dividend” equal to approximately 87% of the stock’s value; and Dr. Pepper then issued to Keurig’s shareholders Dr. Pepper stock equal to approximately 87% of the combined companies’ stock. It is this combination of events that gives rise to the tax issues discussed in this article.

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This Week's Ten Most Popular TaxProf Blog Posts

1. Kellye Testy (President & CEO, LSAC), Building the Future of Justice: Law School Applicants 2019
2. Bryan Camp (Texas Tech), Lesson From The Tax Court: Appeals Is Still Part Of The IRS, Really!
3. Paul Caron (Dean, Pepperdine), The Tension Between Diversity and the U.S. News Law School Rankings
4. Joni Hersch (Vanderbilt) & Erin E. Meyers (Vanderbilt), Why Are Seemingly Satisfied Female Lawyers Running For The Exits?
5. ABA Journal, Conservative 3L Says Gonzaga Law School's Liberal Bias Infringes His First Amendment Rights
6. Paul Caron (Dean, Pepperdine), Fellowships For Aspiring Law Professors (2019-20 Edition)
7. Alan Morrison (George Washington), My Taxes (And Donald Trump's) Are None of Your Business
8. Anthony Kronman (Yale), The Downside of Diversity: Assault On American Excellence
9. NY Times, As Mortgage-Interest Deduction Vanishes, Home Buyers And The Housing Market Merely Shrug
10. Paul Caron (Dean, Pepperdine), A Dean's Perspective On Diversity, Socioeconomics, The LSAT, And The U.S. News Law School Rankings

Rethinking Normative Principles In International Tax

Shay Shimon Moyal (S.J.D. 2020, Michigan), Back to Basics: Rethinking Normative Principles in International Tax, 73 Tax Law. ___ (2019):

International Tax is a relatively new legal system that lacks clear objectives and principles. These principles, which guide unilateral legislation and multilateral coordination, have not been discussed thoroughly through the lenses of jurisprudence and legal philosophy. This paper offers a unique jurisprudential analysis of normative International Tax principles by redefining them and clarifying several basic assumptions.

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McGovern & Brewer: 2018 Federal Income Tax Developments

Bruce A. McGovern (South Texas) & Cassady V. Brewer (Georgia State), Recent Developments in Federal Income Taxation: The Year 2018, 72 Tax Law. __ (2019) (134 pages):

This article summarizes and provides context to understand the most important developments in federal income taxation for the year 2018. The items discussed primarily consist of the following: (i) significant amendments to the Internal Revenue Code; (ii) important judicial decisions; and (iii) noteworthy administrative rulings and regulations promulgated by the Service and Treasury. The article focuses primarily on subjects of broad general interest — tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties.

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ABA Tax Section Names 2019-2020 John Nolan Fellows

ABA Tax Swction Recognizes Outstanding Young Tax Lawyers, Names Six 2019-2020 John S. Nolan Fellows:

The American Bar Association Section of Taxation announced the recipients of the 2019-2020 John S. Nolan Fellows at the Section’s May Meeting in Washington:

• Arielle Borsos (Caplin & Drysdale, Washington, D.C.)
• Phillip Colasanto (Agostino & Associates, Hackensack, NJ)
• Sarah Haradon (Holland & Hart, Denver)
• Travis Thompson (Sideman & Bancroft, San Francisco)
• Shamik Trivedi (Grant Thornton, Washington, D.C.)
• Lany Villalobos (Dechert, Philadelphia)

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2018-20 ABA Tax Section Public Service Fellows

American Bar Association Section of Taxation announces Public Service Fellows

The American Bar Association Section of Taxation has selected its 2018-2020 Christine A. Brunswick Public Service Fellows:

• Evan Phoenix, a graduate of Saint Thomas University School of Law, will be working with the Bet Tzedek Legal Services in Los Angeles, California, to provide tax education, advocacy, and representation on behalf of current military service members, veterans, and ESL (English as a second language) taxpayers.
• Andre Robinson, a graduate of Loyola University New Orleans College of Law, will be working with the Low-Income Tax Clinic at Southeast Louisiana Legal Services in New Orleans, Louisiana to provide education and tax services to taxpayers returning to society after being incarcerated, as well as to micro-business and small-business owners.

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 72, No. 3 (Spring 2019):

• Karen C. Burke (Florida), Section 199A and Choice of Passthrough Entity, 72 Tax Law. 551 (2019)
• Eric Lopresti (National Taxpayer Advocate), What’s Wrong with Strict Liability and Nonmonetary Penalties? The Case for Reasonable Fault-Based Civil Tax Penalties and Procedural Protections, 72 Tax Law. 589 (2019)
• Richard M. Lipton (Baker McKenzie, Chicago), 2019 Erwin N. Griswold Lecture Before the American College of Tax Counsel: Proper Application of the Judicial Doctrines and the Elimination of Section “I Don’t Like It,” 72 Tax Law. 621 (2019)

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ABA Tax Section May Meeting

The highlight of the ABA Tax Section May Meeting (program) in Washington, D.C. for Tax Profs is the Teaching Taxation Program:

Higher Education and Taxation: Are We Getting Tax Policy Right for the Mission of Education? The country is in a battle over the role, place, and funding of higher education. Who is it for? How should it be financed? What should it provide? The tax law impacts higher education in significant ways. This panel will examine those impacts and consider whether we get that policy right, and whether any changes are needed. The 2017 Tax Act imposed new taxes on colleges and universities with large endowments and big salaries. What will be the impact of these changes? Should public universities be able to elect in and out of section 501(c)(3) status? If so, should they be subject to a special set of rules? For-profit higher education providers are increasingly converting to nonprofit status in order to take advantages of benefits provided to tax exempt entities. Should there be rules limiting the entry of for-profit organizations? Tax law also impacts student borrowing. Do we get the incentives right or could we do better in structuring those incentives to benefit those in need?

• Ellen Aprill (Loyola-L.A.)
• Brian Galle (Georgetown)
• Philip Hackney (Pittsburgh) (moderator)
• Benjamin Leff (American)
• Alexandra Mitchell (RSM US LLP, Washington, D.C.)
• Kerry Ryan (Saint Louis) (chair)

Other Tax Prof speakers at the May Meeting:

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Winners Of The 18th Annual Law Student Tax Challenge

ABA Tax Section, 18th Annual Law Student Tax Challenge Winners:

J.D. Division

1st Place:
Jordan Fruchter and Thomas Boland
Albany Law School
Coach: Danshera Cords

2nd Place:
Emily Eash and Eliana Hoeppner
Western New England University

3rd Place:
Luis Garcia and Janette Duran
University of New Mexico Law School

Best Written Submission:
Luis Garcia and Janette Duran
University of New Mexico Law School

Semi-Finalists:
Scott Lee and Brittany Johnson
Georgetown University

Daniel Rowe and Mark Goshgarian
Loyola Law School

Kaitlyn Cornett and Thomas Koelbl
University of Memphis

LL.M. Division

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 72, No. 2 (Winter 2019):

• ABA Tax Section, Initial Comments Concerning the Aggregation and Disaggregation of Trade or Business Activities for Purposes of Section 199A, 72 Tax Law. 381 (2019)
• ABA Tax Section, Comments Concerning the Specialized Service Trade or Business Activities for Purposes of Section 199A, 72 Tax Law. 389 (2019)
• ABA Tax Section, Comments Concerning the Treatment of Losses and Certain Other Issues Regarding the Section 199A Deduction, 72 Tax Law. 401 (2019)
• Sean Anderson (Illinois) & Andrew Morrison Stumpff (Michigan), Proposal for a Non-Subsidized, Non-Retirement-Plan, Employee-Owned Investment Vehicle to Replace the ESOP, 72 Tax Law. 425  (2019)
• Phillip G. Cohen (Pace),  The Compulsory Tax Constraint for Foreign Tax Credits Post TCJA & Coca-Cola Co. v. Commissioner, 72 Tax Law. 445 (2019)
• David Hasen (Florida), Asset Basis in Acquisitive Reorganizations: General Utilities Hangover, 72 Tax Law. 481 (2019)

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ABA Tax Section Publishes New Issue Of Tax Times

The ABA Tax Section has published 38 Tax Times No. 2 (Feb. 2019).

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2018-20 ABA Tax Section Public Service Fellows

The 2018-2020 Christine A. Brunswick Public Service Fellowship Class:

• Anastassia Kolosova, a graduate of the University of Michigan Law School, will be working with the Accounting Aid Society, in Detroit, Michigan, to conduct outreach and education activities for specific vulnerable populations in Detroit and expand the organization’s ability to provide legal representation to low-income taxpayers.
• Omeed Firouzi, a graduate of Villanova University Charles Widger School of Law, will be working with Philadelphia Legal Assistance to provide education and legal assistance to workers misclassified as independent contractors and conduct advocacy and awareness efforts to decrease the practice among employers in Philadelphia.

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ABA Tax Section Midyear Meeting

The ABA Tax Section Midyear Meeting kicks off today in New Orleans. Two highlights are:

Teaching Taxation: Tax Advice in the Age of the 24-Hour News Cycle
Recent instances of exposure by the press of aggressive tax planning and tax avoidance by prominent businesses, individuals or families raise unique substantive, ethical, and other legal issues for the tax community. Practitioners advising famous clients may need to assess not only the likelihood of future examinations, but also public disclosure due to whistleblowers, cooperators, and data leaks. Reporters investigating past tax compliance may recruit tax professionals for technical assistance and expertise to uncover suspect transactions, unreported income, or improper deductions or credits. The release of such information, and related commentary from various media outlets, may pressure Federal and state tax authorities, law enforcement officials, or regulators to open audits or investigations that could result in substantial tax adjustments and/or various civil and criminal penalties. This panel will explore these issues from a variety of perspectives.

• Caroline Ciraolo (Kostelanetz & Fink, Washington, D.C.)
• David Cay Johnston (DCReport.org)
• Michael Lang (Chapman) 
• Michael Plowgian (KPMG, Washington, D.C.)
• Kerry Ryan (St. Louis) (Chair)
• Lee-Ford Tritt (Florida) (moderator)

Teaching Taxation: Current Developments in Individual, Corporate, Partnership, and Estate & Gift Taxation
This session will review the most significant statutory enactments, judicial decisions, IRS rulings,
and Treasury regulations promulgated during the last twelve months that affect general income
taxation, corporate taxation, partnership taxation, wealth transfer taxation, and tax procedure.

• Elaine Gagliardi (Montana)
• Philip Hackney (Pittsburgh)
• Bruce McGovern (South Texas) (moderator)

Other Tax Prof speakers include:

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 72, No. 1 (Fall 2018):

• ABA Tax Section, Recommendations for the 2018-2019 Department of the Treasury and Internal Revenue Service Priority Guidance Plan Related to the Act, 72 Tax Law. 1 (2018)
• ABA Tax Section, Second Set of Recommendations for the 2018-2019 Department of the Treasury and Internal Revenue Service Priority Guidance Plan, 72 Tax Law. 15 (2018)
• ABA Tax Section, Comments on the Tax Treatment of Hard Forks, 72 Tax Law. 27 (2018)

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ABA Tax Section Publishes New Issue Of Tax Times

The ABA Tax Section has published 38 Tax Times No. 1 (Nov. 2018)

2018 Tannenwald Tax Writing Competition Winners

The Theodore Tannenwald, Jr. Foundation for Excellence in Tax Scholarship has announced the winners of the 2018 tax writing competition:

First Prize ($5,000):
Colin T. Halpin (Washburn), A Step in the Right Direction: The Effects of the Tax Cuts and Jobs Act on the Alternative Minimum Tax and the Need for Further Reform
Faculty Sponsor:  Lori McMillan

Second Prize ($2,000):
Betting on an Uncertain Future: The Tax Consequences of Large Third-Party Litigation Financing
Faculty Sponsor:  Gregg Polsky

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 71, No. 4 (Summer 2018):

• ABA Section of Taxation, State and Local Taxes Committee, An Examination of Unclaimed Property Laws after the Adoption of RUUPA: Suggestions for Continued Advancement, 71 Tax Law. 941  (2018)
• Niki Ford (Baker & McKenzie, New York), Tax Reform in a “World Without Chevron”: Will Tax Regulations Withstand the Review of Justice Gorsuch?, 71 Tax Law. 975 (2018)
• Dan M. Smolnik (Pastore & Dailey, Stamford, CT), The Connecticut Municipal Property Tax: Its Roots and Branches, 71 Tax Law. 1011 (2018)

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ABA Administrative Law Conference

Tax Profs with speaking roles at the ABA Administrative Law Conference (Nov. 1-2):

Kristin Hickman (Minnesota), Is Agency Guidance Reviewable (And If So, When)?:

This panel will look at what the federal courts have said about the reviewability of agency guidance, including the rescission of guidance, both in facial challenges and in the enforcement context. All conference attendees should be interested in this program given the important role of agency guidance and the inconsistent case law on the central question presented. Key issues that will be address will include: (i) the treatment of "guidance" within the Administrative Procedure Act (e.g., statements of policy and interpretative rules); (ii) how the courts have grappled with statements of policy and interpretative rules, including application of the APA's "final agency action" requirement; (iii) when "guidance" may be regarded as de facto "legislative rulemaking" for purposes of judicial review; and (iv) whether the form of publication (e.g., "demand letter" or enforcement v. generally applicable "policy bulletin" or "letter of interpretation") and means of publication (e.g., Federal Register, web posting, blast email) affects the question of reviewability, including the subsidiary question of administrative exhaustion. The practical skill attendees will take back to their respective practices after attending this session will be, among other things, a better understanding of the importance to judicial review of how guidance is drafted, i.e., how language is used to communicate the agency's message and the potential legal consequences of that language.

Shu-Yi Oei (Boston College) & Leigh Osofsky (North Carolina), The Role of Agencies in Legislative Drafting and Legislative Cleanup:

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ABA Tax Section Fall CLE Meeting

The ABA Tax Section kicks off its three-day joint fall meeting with the ABA Real Property, Trust and Estate Law Section today in Atllanta.  The full program is here. The highlight is:

Individual & Family Taxation — SALT Deduction Limit Workarounds Panel. This panel will discuss the various strategies that States are implementing to provide a workaround to the 2017 Tax Act’s state and local tax deduction limit. In general, these programs use contributions to various state-sponsored funds or programs that offer a credit against state tax liability. The panel will evaluate and discuss the legal merits of such workarounds.

• Andy Grewal (Iowa)
• Kirk Stark (UCLA)
• Timothy Todd (Liberty)

Other Tax Profs with speaking roles include:

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Hasen: Asset Basis In Acquisitive Asset Reorganizations — General Utilities Hangover

David Hasen (Florida), Asset Basis in Acquisitive Asset Reorganizations: General Utilities Hangover, 72 Tax Law. ___ (2019):

The rules that govern the tax basis and, by extension, the holding period of property received by an acquired corporation in an acquisitive reorganization are an unlovely patchwork that emerged from major changes to the tax law in 1986 and 1988. They not only fail to provide clarity but also do not reflect the fact that the acquired corporation, to the extent it engages in post-reorganization activity pursuant to the overall plan of reorganization, is in substance the agent of the acquiring corporation. Congress should amend the reorganization provisions to reflect this circumstance.

ABA Tax Section Releases 18th Annual Law Student Tax Challenge Problem

The ABA Tax Section has released the J.D. Problem (rules; entry form) and LL.M. Problem (rules; entry form) for the 18th Annual Law Student Tax Challenge:

An alternative to traditional moot court competitions, the Law Student Tax Challenge asks two-person teams of students to solve a cutting-edge and complex business problem that might arise in everyday tax practice. Teams are initially evaluated on two criteria: a memorandum to a senior partner and a letter to a client explaining the result. Based on the written work product, six teams from the J.D. Division and four teams from the LL .M. Division receive a free trip (including airfare and accommodations for two nights) to the Section of Taxation 2019 Midyear Meeting, January 17-19, 2019 in New Orleans, where each team will defend its submission before a panel of judges consisting of the country’s top tax practitioners and government officials, including tax court judges. The competition is a great way for law students to showcase their knowledge in a real-world setting and gain valuable exposure to the tax law community. On average, more than 50 teams compete in the J.D. Division and more than 30 teams compete in the LL .M. Division.

IMPORTANT DATES

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Section 355 Revisited: Time For A Major Overhaul?

Herbert N. Beller (Northwestern), Section 355 Revisited: Time for a Major Overhaul?, 71 Tax Law. ___ (2018):

Section 355 of the Internal Revenue Code permits a corporation that conducts multiple active businesses to distribute controlling stock ownership interests in one or more of such businesses to all or some of its shareholders on a tax-free basis, provided that various statutory and non-statutory requirements are met. Commonly known as “spin-offs”, “split-offs” and “split-ups”, qualifying section 355 distributions are often preceded by a transfer of assets (and sometimes liabilities) into the distributed controlled corporation, as part of an overall type “D” divisive “reorganization” described in section 368(a)(1)(D). Non-recognition treatment for at least some forms of corporate separations dates back to the Revenue Act of 1918. The 1954 Code iteration of section 355, which continues to provide the basic statutory framework for tax-free treatment, has been amended several times in order to tighten various qualification requirements and, in certain instances, to impose a corporate level tax on the distributing corporation (via sections 355(d) and (e)) even through the transaction still generates tax–free treatment at the shareholder level. In general, however, the primary distinguishing tax feature of section 355 transactions is that they permit tax-free treatment at both the shareholder and corporate levels, thus constituting the principal exception to the statutory repeal of the so-called General Utilities doctrine during the mid-1980s. The main premise of this article is that section 355 is due for a major overhaul.

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ABA Tax Section Publishes New Issue Of Tax Times

The ABA Tax Section has published 37 Tax Times No. 4 (August 2018)

Brown: Proposing A Single, Simpler Test For Cash Equivalency

Fred B. Brown (Baltimore), Proposing a Single, Simpler Test for Cash Equivalency, 71 Tax Law. 543 (2018):

Under the cash method of accounting, generally taxpayers include income items that are received in the form of cash, checks, and property, in the year in which they are received. Under the cash equivalency doctrine, a promise to pay an amount in the future, even though it is a property right, generally will be included upon receipt only if the promise to pay constitutes a cash equivalent.

Whether an obligation is a cash equivalent is generally determined based on common law standards developed by the courts with some assistance from the Service. As a consequence, the current approach to cash equivalency suffers from the lack of a uniform standard. There is also uncertainty in applying the particular tests, given the fact-intensive, imprecise inquiry that is required. In addition, the current standards for cash equivalency may also present liquidity difficulties for taxpayers.

To address these problems, this article proposes a single test for determining whether an obligation calling for future payments is a cash equivalent.

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 71, No. 3 (Winter 2018):

• Martin J. McMahon, Jr. (Florida), 2018 Erwin N. Griswold Lecture Before the American College of Tax Counsel: Tax Policy Elegy, 71 Tax Law. 421  (2018)
• Jerred G. Blanchard, Jr. (Baker & McKenzie, Houston), The Ghost of Kimbell-Diamond: The Current State of the Law Pertaining to Multi-Step Corporate Transactions, 71 Tax Law.  445 (2018)
• Bradley T. Borden (Brooklyn) & Sang Hee Lee (Ernst & Young, New York), Quantitative Prediction Model of Tax Law’s Substantial Authority, 71 Tax Law. 543 (2018)
• Fred B. Brown (Baltimore), Proposing a Single, Simpler Test for Cash Equivalency, 71 Tax Law.  591 (2018)
• Philip G. Cohen (Pace), The Fact of the Liability Requirement in the All Events Test—Flying Lessons over the Dark Clouds of General Dynamics from a Giant Eagle, 71 Tax Law. 635 (2018)
• Eric A. San Juan (Georgetown), The Distributive State and the Function of Tax Expenditures, 71 Tax Law. 673 (2018)

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ABA Tax Section Awards

• 2018 Distinguished Service Award:  Susan P. Serota (Pillsbury Winthrop Shaw Pittman, New York)
• 2018 Janet Spragens Pro Bono Award:  Kathryn Sedo (Minnesota & Michigan tax clinics),  Dale Kensinger (Harvard tax clinic)

McGovern & Brewer: 2017 Federal Income Tax Developments

Bruce A. McGovern (South Texas) & Cassady V. Brewer (Georgia State), Recent Developments in Federal Income Taxation: The Year 2017, 71 Tax Law. ___ (2018) (139 pages):

These materials discuss as well as provide context to understand the significance of the most important judicial decisions and administrative rulings and regulations promulgated by the Service and Treasury during 2017. Amendments to the Code generally are not discussed except to the extent that they are of major significance, they have led to administrative rulings and regulations, or they have affected previously issued rulings and regulations otherwise covered by these materials. These materials focus primarily on topics of broad general interest — income tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties.

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ABA Tax Section Publishes New Issue Of Tax Times

The ABA Tax Section has published 37 Tax Times No. 3 (May 2018)

This Week's Ten Most Popular TaxProf Blog Posts

1. IRS Warns Taxpayers That Regs Will Prevent States From Circumventing $10k S&L Tax Cap With 'Charitable' Contributions
2. Applicants To Law School Versus Medical School
3. Bryan Camp (Texas Tech), Lesson From The Tax Court: The Role Of State Law In Federal Taxation
4. David Graeber (London School of Economics), The Bullshitization Of Academic Life
5. Daniel Hemel (Chicago), Two Cheers For IRS Guidance On The New State & Local Tax Ca
6. California Bar Exam Pass Rate Sinks To All-Time Low: 27.3%
7. Should Law School Be More Like Chipotle?
8. Kentucky Moves To Fire Tenured Prof For Assigning His Book In Class And Keeping $6k Royalties
9. Should Law Schools Ban Smartphones In Faculty Offices?
10. Should The Law School Of The Future Eliminate Faculty Offices — And Even Assigned Desks?

Ring: The Stages Of International Tax Reform

Diane Ring (Boston College), The Stages of International Tax Reform:

Since December 2017, tax conferences in the United States have focused substantially on the H.R. 1 tax reform legislation. No surprise there — the 2017 changes are among the most significant in the past thirty years. But over the past five months, through attending numerous tax conferences featuring international tax practitioners, I’ve observed some interesting developments in the nature of the discussions and debates at these conferences. These changes are pretty revealing about the process of absorbing the true impact of the new tax law, particularly in international tax. This weekend’s ABA May Tax Section Meeting in Washington, D.C. highlighted some of these trends.

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ABA Tax Section May Meeting

Tax Prof speakers at the ABA Tax Section May Meeting in Washington, D.C. (program):

• Alice Abreu (Temple)
• Ellen Aprill (Loyola-L.A.)
• Leslie Book (Villanova)
• Bradley Borden (Brooklyn)
• David Brennen (Dean, Kentucky)

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 71, No. 2 (Winter 2018):

• ABA Tax Section, Comments on Proposed Regulations Implementing the Partnership Audit Procedures Enacted as Part of the Bipartisan Budget Act of 2015,  71 Tax Law. 219 (2018)
• ABA Tax Section, Comments Regarding Capital Accounts and Basis with Respect to Proposed Regulations Implementing the Partnership Audit Procedures Enacted as Part of the Bipartisan Budget Act of 2015, 71 Tax Law. 313 (2018)
• ABA Tax Section, Comments on Draft Revenue Procedure Addressing Issues Under Section 1362(f), 71 Tax Law. 325 (2018)
• Caroline Rule (Kostelanetz & Fink, New York), United States v. Greenfield: A Triumph of the Fifth Amendment's Act of Production Privilege; or Confirmation that the Privilege Can Be Entirely Abrogated by Any Act of Congress, or Even by a Treasury Regulation?, 71 Tax Law. 335 (2018)

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Kleinbard: Perversion Of The Tax Policymaking Process

Here is the video of the keynote address by Edward Kleinbard (USC) at the ABA Tax Section Midyear Meeting on Perversion of the Tax Policymaking Process:

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ABA Tax Section Publishes New Issue Of Tax Times

The ABA Tax Section has published 37 Tax Times No. 2 (Mar. 2018)

McMahon: Tax Policy Elegy

Martin J. McMahon, Jr. (Florida), 2018 Erwin N. Griswold Lecture Before the American College of Tax Counsel: Tax Policy Elegy, 71 Tax Law. ___ (2018):

For over four decades there have been unrelenting calls to make the tax code “fair, simple, and efficient.” But despite nine major tax acts between 1969 and 2003, along with many less extensive tax acts, the refrain for a “fair, simple, and efficient” tax code has continued to be heard. This continuing plea is not surprising, because over the decades the tax system has evolved to ask the highest income earners to pay less in taxes, become ever more complex, and eschewed “efficiency” in favor of the allowance of an ever-increasing number of tax preferences. Tax act after tax act failed to produce a fair, simple, and efficient tax code. The recently enacted Tax Cuts and Jobs Act is simply another failure to enact tax reform that provides a fair, simple, and efficient tax code. The call for a “fair, simple, and efficient” tax code has become a mere trope. True “tax reform” entails revising the tax code better to meet normative tax policy criteria.

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2017 Tannenwald Tax Writing Competition Winners

The Theodore Tannenwald, Jr. Foundation for Excellence in Tax Scholarship has announced the winners of the 2017 tax writing competition:

First Prize ($5,000):
David Berke (Yale), Reworking the Revolution: Treasury Rulemaking & Administrative Law
Faculty Sponsor:  Anne L. Alstott

Second Prize ($2,500):
Daniel W. Blum (NYU), Treaty Shopping and its Prevention in a Post-BEPS World Limitation-on-Benefits, Beneficial Ownership and the Principal Purpose Test: Evolution, Underlying Rationales and Interrelation
Faculty Sponsor:  H. David Rosenbloom

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ABA Tax Section Midyear Meeting

The ABA Tax Section Midyear Meeting is taking place this weekend in San Diego.  Two of the highlights are:

Luncheon Plenary Address:  Edward Kleinbard (USC), Perversion of the Tax Policymaking Process:
The Tax Cuts and Jobs Act can be criticized on many substantive grounds, and for its effect on deficits. But the legislative process also revealed important shortcomings beyond its haste. Traditional tax policy metrics — conventional revenue estimates, dynamic estimates and distributional analyses — yield misleading results in a tax framework that loses over one trillion dollars. The result is that the legislation has even more deleterious welfare implications than these standard metrics suggest.

Teaching Taxation Program: Evolving Constraints on Tax Administration:
The IRS and Treasury Department have faced increasing budget and legal constraints over the past few years. Treasury is also experiencing limits on its rulemaking, both from the current Presidential Administration and from courts applying administrative law, such as with respect to the anti-inversion regulations. IRS budget constraints and workforce decreases started around 2011, and the IRS’s image has suffered following a 2013 report from the Treasury Inspector General for Tax Administration (TIGTA) on the IRS’s review of applications for determination of tax-exempt status. A 2017 TIGTA report revisited that issue in a balanced way, but where does it leave the IRS? This panel will look at how we got here, what it means, and what the ideal environment for tax administration looks like. The panelists will discuss the recent cases of Altera and Chamber of Commerce and assess how the IRS, taxpayers, and counsel should proceed given the ever-evolving constraints on tax administration.
Philip Hackney (LSU), Kristin Hickman (Minnesota), Leandra Lederman (Indiana), Kerry Ryan (St. Louis)

The full program is here. Other Tax Profs with speaking roles include:

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Northwestern Offers 6-8 Graduate Tax Program Tuition Scholarships ($64k) To Serve As Student Editors Of The Tax Lawyer

Following up on last week's post, After 50 Years, ABA Tax Section Shifts Publication Of The Tax Lawyer From Georgetown To Northwestern:  Philip Postlewaite (Director, Northwestern's Graduate Tax Program):

Along with Karen Hawkins, the current Chair of the ABA Tax Section, I am proud to announce that The Tax Lawyer, the flagship journal of the ABA’s Tax Section, will be moving to Northwestern in the fall of 2018. We look forward to the beginning of a close and engaging relationship with the Editorial Board and the Council of the ABA Tax Section. David Cameron will become the Faculty Editor, supervising student and faculty involvement in the publication process.

In order to assist in the publication of The Tax Lawyer, Northwestern will select a six-to-eight member Student Editorial Board from among the admitted students in each of our future LLM classes. In order to encourage highly-qualified applicants to apply to, and matriculate at, Northwestern and to serve as student editors, we have created The Northwestern Pritzker Dean’s Scholarship Fund. Importantly, Dean’s Scholars will receive scholarships equal to the cost of tuition [$63,558] at Northwestern.

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After 50 Years, ABA Tax Section Shifts Publication Of The Tax Lawyer From Georgetown To Northwestern

Karen L. Hawkins (Chair, ABA Tax Section), The Tax Lawyer Enters a New Era:

I am pleased to report that the negotiations first reported in my fall column of ABA Tax Times are complete. The Tax Section has finalized an agreement with the Northwestern University Pritzker School of Law to engage students from its full-time Tax LL.M. Program as student editors of our flagship journal, The Tax Lawyer. We believe this new relationship offers enhanced opportunities for the Section, and a new vision for The Tax Lawyer that will serve our members for years to come.

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 71, No. 1 (Fall 2017):

• Joni Larson, A Practitioner’s Guide to Tax Evidence (2d ed. 2017): A Preview, 71 Tax Law. 1 (2017)
• Bradley T. Borden (Brooklyn) & Sang Hee Lee (Ernst & Young, New York), Boundaries of the Prediction Model in Tax Law’s Substantial Authority, 71 Tax Law. 33 (2017)
• David Hasen (Florida), A Partnership Mark-to-Market Tax Election, 71 Tax Law. 93 (2017)
• Allen D. Madison (South Dakota), The IRS’s Tax Determination Authority, 71 Tax Law. 143 (2017)

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This Week's Ten Most Popular TaxProf Blog Posts

1. The Most Underrated Law Schools In America
2. The IRS Scandal, Day 1671: Lois Lerner’s Secrets
3. Fall 2018 Law School Admissions Season Opens With A Bang: Applicants Are Up 14.2%
4. The IRS Scandal, Day 1672: Ohio Attorney General Asks Federal Court To Release Lois Lerner's Deposition In Tea Party Targeting Case
5. Senate Passes 479-Page Tax Bill 51-49; House And Senate Bills Now Go To Conference
6. WSJ: Law Schools Say: Please Come, No LSAT Required
7. Adam J. MacLeod (Faulkner), Law Prof: Undoing The Dis-Education Of Millennials
8. Bryan Camp (Texas Tech), Lesson From The Tax Court: The Perils Of Poor Drafting
9. Stephen Shay (Harvard), Tax Reform: Process Failures, Loopholes and Wealth Windfalls
10. Eugene Volokh (UCLA), With State Income Taxes No Longer Deductible, Will States Switch To Payroll Taxes?

ABA Tax Section Publishes New Issue Of Tax Times

The ABA Tax Section has published 37 Tax Times No. 1 (Nov. 2017)

Herzfeld: A History Of The ABA Tax Section

Mindy Herzfeld (Florida), How Lawyers Dominate: A History of the ABA Tax Section:

The story of how tax attorneys came to dominate the fields of tax policy and sophisticated tax practice is the success story of an organized professional association. The prominence of the role of attorneys in the development and practice of the tax law was not a foregone prerequisite of the U.S. federal income tax system. Rather, the professional organization of attorneys into a specialized group within bar associations has played a significant role in making lawyers the central players in tax policy and tax practice in the U.S.

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The Tax Implications Of Game Of Thrones

In a recent post of mine I referenced Game of Thrones (“GOT”), which is an HBO TV series based on the book collection “A Song of Ice and Fire” by George R.R. Martin. A commentator asked “Would it surprise you to know that some of your readers don't have the faintest idea of what your reference to "Game of Thrones" means?”

For such readers, I regret that you have not read this incredible fantasy adventure series. Not only because it’s good, but because references such as mine abound. Me nem nesa. A particularly amusing and creative spin comes from the otherwise staid ABA Section on Taxation. Each year the Tax Section puts out a “Tax Challenge” for both J.D. students and LL.M. students. This year’s Tax Challenge looks at some tax implications from GOT. Here’s how it starts:

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The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 70, No. 4 (Summer 2017) (State and Local Tax Edition):

• Eric S. Smith (Weber State), Due Process Implications Related to State Notice and Economic Nexus Laws, 70 Tax Law. 833 (2017)
• Kyle Richard (University of Washington), Towards a Standard for Intergovernmental Tax Immunity Between the Several States, 70 Tax Law. 869 (2017)
• Matthew T. Szudajski (Tax LL.M., Villanova), The Rising Trend of Sales Tax Nexus Expansion, 70 Tax Law. 907 (2017)

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ABA Tax Section Chair Explains Reduced Travel Support For Academics

Following up on my previous posts:

• Bryan Camp (Texas Tech), ABA Tax Section Reduces Support For Tax Profs
• Leandra Lederman (Indiana-Bloomington), The ABA Tax Section’s Reduced Travel Support For Academics

To:      ABA Taxation Section Teaching Taxation Committee members
From: Karen L. Hawkins, Chair, Taxation Section
Re:     Reimbursement for Academic leaders and speakers

As all of you are aware by now, during the business meeting of the Taxation Section Council, difficult financial decisions were made. These types of difficult belt-tightening decisions have had to be made over the past two years, and will continue to be required to reach, and maintain, a revenue neutral budget. If the Section is to maintain its stated commitments to provide services to its membership; tax assistance to vulnerable taxpayers; and leadership in support of a workable tax system, it is imperative that we continue to cut expenses while also seeking additional ways to increase income.

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Lederman: The ABA Tax Section’s Reduced Travel Support For Academics

Leandra Lederman (Indiana-Bloomington), Analysis of the ABA Tax Section’s Reduced Travel Support for Academics:

A hot topic among professors at the recent ABA Tax Section meeting in Austin was the reduction in travel support for academics scheduled to take effect with the upcoming meeting in San Diego. As Prof. Bryan Camp wrote on TaxProf blog, the background is that, for years, and through the most recent meeting, full-time professors who have a leadership role in the section (Chair or Vice-Chair of a committee, or higher positions) have received a travel subsidy.

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Follow Up On § 7434 Suits For Filing False Information Returns

I previously blogged about a great panel presentation I attended at the Fall ABA Tax Section Meeting in Austin. The presentation was about how to sue someone under § 7434 for filing a false information return.

This past week one of the panelists, Stephen Olson, has blogged more about this subject here and here.  The blogs are worth calling to your attention. He dives a bit deeper into this subject to look at whether an Information Return that states the correct payment amount but is otherwise false and misleading, is sufficient to support suit under § 7434.

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Suing Someone for a False Information Return

Last week I went to the ABA Tax Section Meeting in Austin and really enjoyed attending a terrific panel on Section 7434.  The moderator was Professor Leslie Book, of Villanova School of Law and the presenters were Stephen Olsen, of Gawthrop Greenwood, PC; and Mandi Matlock, of Texas RioGrande Legal Aid Inc., Austin, TX.  

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