29 Tax Profs Say Deference To Tax Court Is Not Needed In Altera

Bloomberg Tax, Deference to Tax Court Isn’t Needed in Altera Case, Academics Say:

Intel-owned Altera misrepresented how the Ninth Circuit should treat conflicting decisions between its own three-judge panel and the U.S. Tax Court, a group of legal academics said.

“No special deference is due to Tax Court decisions,” the 29 academics argued in an amicus brief filed with the U.S. Court of Appeals for the Ninth Circuit. They were responding to Altera's request for a rehearing in a tax dispute with the IRS.

The 29 Tax Profs signatories are:

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2020 U.S. News College Rankings

U.S. News & World Report has released its 2020 College Rankings. Here are the Top 25 National Universities and Liberal Arts Colleges (along with their 2017-2019 rankings):

2020 Rank	National Universities	2019 Rank	2018 Rank	2017 Rank
1	Princeton	1	1	1
2	Harvard	2	2	2
3	Columbia	3	5	5
3	MIT	3	5	7
3	Yale	3	3	3
6	Chicago	3	3	3
6	Stanford	7	5	5
6	Penn	8	8	8
9	Northwestern	10	11	12
10	Duke	8	9	8
10	Johns Hopkins	10	11	10
12	Cal-Tech	12	10	12
12	Dartmouth	12	11	11
14	Brown	14	14	14
15	Vanderbilt	14	14	15
15	Notre Dame	18	18	15
17	Cornell	16	14	15
17	Rice	16	14	15
19	Washington (St. Louis)	19	18	19
20	UCLA	19	21	24
21	Emory	21	21	20
22	UC-Berkeley	22	21	20
22	USC	22	21	23
24	Georgetown	22	20	20
25	Carnegie Mellon	25	25	24
25	Michigan	27	28	27

Pepperdine is ranked #50 (tied with Georgia, Lehigh, and RPI).

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Trump Took A Big Loan From Trump And Never Paid Trump Back ... Because It's A Tax Scam

Daily Kos, Trump Took a Big Loan From Trump and Never Paid Trump Back ... Because It's a Tax Scam:

A loan listed on Donald Trump’s personal financial disclosure forms appears to be hiding a scheme in which he got tens of millions from Deutsche Bank and never reported the income to the IRS. It all adds up to a huge violation of federal tax law that Trump is hiding behind one of the many LLCs that make up the Trump Organization.

Donald Trump has debts. How many debts, and who is collecting on those debts, is not very clear. It’s especially not clear because Trump is fighting tooth and nail to prevent the release of his tax returns and to prevent banks from providing Congress with any information. But among Trump’s loans there is one that may be more mysterious than all the rest, and that’s the over $50 million that Donald Trump owes to … Donald Trump.

Trump’s business is not actually a single business at all, but an interwoven network of over 500 LLCs and holding companies. They may have different names, different assets, and even different addresses, but what almost all these companies have in common is that they are 100% owned by Trump.

With that in mind, Mother Jones took a look a Trump’s personal financial disclosure forms and found that he reports owing “over $50 million” to Chicago Unit Acquisition LLC. Trump owns that company 100%. So he owes that debt to himself. Which isn’t necessarily dishonest, but Trump sets the value of Chicago Unit Acquisition at zero. He’s borrowed at least tens of millions, but he doesn’t seem to be making any payments on this “loan” at all. That’s just the start of the weirdness. On the books of the company, the company that Trump owns, the loan to Donald Trump is classified as a high-risk loan. 

That last thing is certainly true. But everything else about this situation stinks to high heaven. As the Mother Jones analysis points out, it not only violates every rule of accounting, but it also looks like massive tax fraud.

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Arizona State Business School Abandons Tuition-Free MBAs After Rankings Boost Fades

Wall Street Journal, A ‘Free’ M.B.A. Sometimes Isn’t Enough to Lure Students:

Arizona State University’s business school used a $50 million donation to bet on a future where its M.B.A. is free. Four years after slashing tuition costs for full-time students to zero, the dean says the cost is still too high for many people.

Turns out, luring talented graduate students to a two-year degree program in the current hot job market requires even more creative financing, says Amy Hillman, dean of ASU’s W.P. Carey School of Business. The sticker price of business school, which can add up to six figures, is just one of several factors that keep millennials from pursuing an M.B.A.

“We thought by announcing that everyone would be getting the same deal on a world-class education, we’d get a very different class,” she says. “We didn’t know how much scholarships were being used by our peer schools” to lure the same small pool of talent.

In 2015 when the university launched its novel experiment to draw a more diverse M.B.A. class, the news of free M.B.A.s for everybody accepted was met with a flood of interest. Admissions officers were inundated with a record number of applications for the inaugural class of fully funded business-school candidates.

The scholarship program successfully paved a path for many early-career workers in the nonprofit sector and education, Ms. Hillman says. But school leaders underestimated the fierceness of the competition from other M.B.A. programs.

Many universities have started to heavily subsidize the cost of a degree—which can top $200,000 with living expenses at highly ranked programs such as Harvard Business School and the Wharton School of the University of Pennsylvania—by awarding millions of dollars in scholarships and financial aid each year. Ms. Hillman says schools like hers, regarded among the nation’s top 50 programs by academic-rankings publishers, attract thousands of candidates eager to pursue an M.B.A. at a fraction of the prices those elite schools charge.

Free tuition alone doesn’t provide a strong enough incentive to return to school for some prospects who might need two years’ worth of living expenses to attend full-time, she says. Other admitted applicants were turning down Carey’s offer for even richer scholarship packages at other business schools, the dean adds, highlighting the value of a more flexible financial-aid strategy.

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IMF: The Rise Of Phantom Foreign Direct Investments And The Fall Of Global Tax Enforcement

Jannick Damgaard, Thomas Elkjaer & Niels Johannesen (IMF), The Rise of Phantom Investments: Empty Corporate Shells in Tax Havens Undermine Tax Collection in Advanced, Emerging Market, and Developing Economies:

According to official statistics, Luxembourg, a country of 600,000 people, hosts as much foreign direct investment (FDI) as the United States and much more than China. Luxembourg’s $4 trillion in FDI comes out to $6.6 million a person. FDI of this size hardly reflects brick-and-mortar investments in the minuscule Luxembourg economy. So is something amiss with official statistics or is something else at play?

FDI is often an important driver for genuine international economic integration, stimulating growth and job creation and boosting productivity through transfers of capital, skills, and technology. Therefore, many countries have policies to attract more of it. However, not all FDI brings capital in service of productivity gains. In practice, FDI is defined as cross-border financial investments between firms belonging to the same multinational group, and much of it is phantom in nature—investments that pass through empty corporate shells. These shells, also called special purpose entities, have no real business activities. Rather, they carry out holding activities, conduct intrafirm financing, or manage intangible assets—often to minimize multinationals’ global tax bill. Such financial and tax engineering blurs traditional FDI statistics and makes it difficult to understand genuine economic integration.

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Wisconsin Symposium: Wills, Trusts, And Estates Meets Gender, Race, And Class

Symposium, Wills, Trusts, and Estates Meets Gender, Race, and Class, 2019 Wis. L. Rev. 161-396:

• Carla Spivack (Oklahoma City), Introduction, 2019 Wis. L. Rev. 161
• Naomi Cahn (George Washington), Keynote Lecture: Dismantling the Trusts and Estates Canon, 2019 Wis. L. Rev. 165
• Carla Spivack (Oklahoma City), Broken Links: A Critique of Formal Equality in Inheritance Law, 2019 Wis. L. Rev. 191
• Deborah S. Gordon (Drexel), Engendering Trust, 2019 Wis. L. Rev. 213
• Karen J. Sneddon (Mercer), Voice, Strength, and No-contest Clauses, 2019 Wis. L. Rev. 239
• Bridget J. Crawford (Pace), Wills Formalities in the Twenty-first Century, 2019 Wis. L. Rev. 269
• Danaya C. Wright (Florida), Disrupting the Wealth Gap Cycles: An Empirical Study of Testacy and Wealth, 2019 Wis. L. Rev. 295
• Phyllis C. Taite (Florida A&M), Freedom of Disposition v. Duty of Support: What's a Child Worth?, 2019 Wis. L. Rev. 325
• Shelly Kreiczer-Levy (Emory), Big Data and the Modern Family, 2019 Wis. L. Rev. 349

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The Current State Of Sales Tax On Digital Products

Rice University Baker Institute for Public Policy, The Current State of Sales Tax on Digital Products:

Recent technological advancements have transformed how people conduct their daily activities. These changes are not only affecting how people live and work, but they are also redefining how people entertain and learn. Today, it is common to remotely access files stored in Dropbox, read e-books downloaded on Kindle, watch TV shows streamed from Netflix or Hulu, and listen to music through Spotify. These technological developments are making state tax authorities assess the taxability of digital products. This report reviews the current landscape of state sales tax on digital products, court cases, administrative actions, congressional proposals, and potential future developments in the taxation of digital products. ...

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2018 James P. White Lecture on Legal Education: The Leadership Council On Legal Diversity — Realizing The Vision

Robert J. Grey, Jr. (President, Leadership Council on Legal Diversity), 2018 James P. White Lecture on Legal Education: The Leadership Council on Legal Diversity: Realizing the Vision, 52 Ind. L. Rev. 95 (2019):

In its first ten years, the Leadership Council on Legal Diversity (LCLD) has grown, and grown rapidly, to a membership of more than 300 corporate chief legal officers and law firm managing partners. These individuals represent the top ranks of leadership in the legal profession. They have each made a personal commitment to the next generation of leaders in the law to build a profession that is as diverse as the nation it serves. Theirs is a compelling vision, but one that they understand will not be realized quickly. Clear-eyed about the challenges, they are committed to action and determined to see results that are profound and lasting.

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EPA Has The Authority To Impose A Carbon 'Tax'

E. Donald Elliott (Yale; Former EPA Assistant Administrator and General Counsel (1989-91), EPA Has Existing Authority to Impose a Carbon 'Tax':

A number of bills have been introduced in recent years to put a price on carbon via a federal carbon tax. These proposals generally proceed from the implicit assumption that the federal government in general, and the Environmental Protection Agency (EPA) in particular, does not already have such authority. That is incorrect. Under a federal statute that has been on the books since 1952,  EPA could impose a carbon “tax” any time an Administration in power was willing to do so. That is because a charge for using the public’s air to dispose of carbon dioxide and other wastes is not technically a “tax,” but rather a “user fee.” The confusion stems from a 1990 legal opinion written by the author when he was EPA General Counsel, which ironically was intended to increase EPA’s use of tradeable permits and other economic incentives to regulate pollution. It is time to set the record straight that EPA does have existing authority to impose a reasonable user fee on releases of carbon dioxide and other greenhouse gases (GHGs), as well as other pollutants, any time that it has the political will to do so. ...

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Lesson From The Tax Court: Transfer Of Partnership Shares Changes Interest Deduction

Tax law is full of lessons where taxpayers exalt form over substance, then get caught.  Last week’s lesson---where a charity in name was a business in substance---was one of those.  We can think of those as “dog bites man” lessons, because they are common.

This week’s lesson is more of the “man bites dog” variety.  In William C. Lipnick and Dale A. Lipnick v. Commissioner, 153 T.C. No. 1 (Aug. 28, 2019) (Judge Lauber), it was the IRS that relied on form and the taxpayer who argued substance.  Mr. Lipnick had received real estate partnership shares from his Dad by gift and bequest.  The partnership passed through interest expenses on real estate loans.  Mr. and Ms. Lipnick deducted those expenses on their Schedule E.  The IRS insisted the Lipnicks treat the expenses as investment interest (deducted on Schedule A) because Dad had so treated them.  In his usual no-nonsense clear and direct style, Judge Lauber explains why the IRS position was incorrect: its reasons were formalist and ignored how the substance of the interest payments had changed once the partnership shares passed from father to son.  Details below the fold.

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GAO: Department Of Education Rejects 99% Of Applications For ‘Expanded’ Public Interest Loan-Forgiveness Program

Government Accountability Office, Public Service Loan Forgiveness: Improving the Temporary Expanded Process Could Help Reduce Borrower Confusion (GAO-19-595) (Sept 5, 2019): 

The Department of Education's (Education) process for obtaining Temporary Expanded Public Service Loan Forgiveness (TEPSLF) is not clear to borrowers. Established in 2007, the Public Service Loan Forgiveness (PSLF) program forgives federal student loans for borrowers who work for certain public service employers for at least 10 years while making 120 payments via eligible repayment plans, among other requirements. In 2018, Congress funded TEPSLF to help borrowers who faced barriers obtaining PSLF loan forgiveness because they were on repayment plans that were ineligible for PSLF. Congress also required Education to develop a simple method for borrowers to apply for TEPSLF. Education established a process for borrowers to initiate their TEPSLF requests via e-mail. The agency also required TESPLF applicants to submit a separate PSLF application before it would consider their TEPSLF request. Agency officials said they established this process to quickly implement TEPSLF and obtain the information needed to determine borrower eligibility. However, the process can be confusing for borrowers who do not understand why they must apply separately for PSLF—a program they are ineligible for—to be eligible for TEPSLF. Requiring borrowers to submit a separate PSLF application to pursue TEPSLF, rather than having an integrated request such as by including a checkbox on the PSLF application for interested borrowers, is not aligned with Education's strategic goal to improve customer service to borrowers. As a result, some eligible borrowers may miss the opportunity to have their loans forgiven.

As of May 2019, Education had processed about 54,000 requests for TEPSLF loan forgiveness since May 2018, and approved 1 percent of these requests, totaling about $26.9 million in loan forgiveness (see figure). Most denied requests (71 percent) were denied because the borrower had not submitted a PSLF application. Others were denied because the borrower had not yet made 120 qualifying payments (4 percent) or had no qualifying federal loans (3 percent).

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IRS Releases New Online Tax Calculator For Gig Economy Workers

IR-2019-149, Freelancers, Others With Side Jobs in the Gig Economy May Benefit From New Online Tool:

The Internal Revenue Service said today that the new Tax Withholding Estimator tool includes a feature designed to make it easier for employees who also receive self-employment income to accurately estimate the right amount of tax to have taken out of their pay.

The estimator is an expanded, mobile-friendly online tool that replaced the Withholding Calculator, which since 2001 had offered workers an online method for checking their withholding. The old calculator lacked features geared to self-employed individuals; the new estimator made changes to address this important group.

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TaxProf Blog Weekend Roundup

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• University of Alabama, Hugh Culverhouse End Spat After Return Of $21.5 Million Gift And Removal Of Donor's Name From Law School
• Judge Recommends Dismissing Lawsuit Accusing Widener Law School Of Doctoring Job Stats
• Can State-Level Carbon Taxes Work?

Sunday:

• Roberts: Stranded Assets And Efficient Pricing For Public Utilities — A Federal Tax Solution
• Reforming The Charitable Contribution Tax Deduction: Accounting For Random Acts Of Charity
• A Philosopher Asks: Should Work Be Our Passion, Or Our Duty?
• The Top Five New Tax Papers

Roberts: Stranded Assets And Efficient Pricing For Public Utilities — A Federal Tax Solution

Tracey M. Roberts (Cumberland), Stranded Assets and Efficient Pricing for Public Utilities: A Federal Tax Solution, 11 Colum. J. Tax L. ___ (2019):

Most businesses recoup their investments in property, plant and equipment from the income they earn from using those assets. When changes in markets, technology, or regulations reduce income from those assets or increase operating costs, businesses may not recover their full investments in those “stranded assets.” Unregulated firms generally contain these risks by diversifying assets and income streams, procuring insurance, or engaging in hedging transactions. Public utilities, however, must obtain a regulator’s permission to pass the costs of those assets forward to consumers. Globally, over $20 trillion in global fossil fuel assets may be stranded when climate change legislation is passed. Consequently, investor and consumer concerns about stranded costs have delayed the adoption of carbon pricing schemes, spurred the rejection of greenhouse gas regulation altogether, and formed the basis for bankruptcy filings, takings litigation, and demands for relief. This article makes four contributions.

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Reforming The Charitable Contribution Tax Deduction: Accounting For Random Acts Of Charity

Janene R. Finley (St. Ambrose University), Reforming the Charitable Contribution Tax Deduction: Accounting for Random Acts of Charity, 10 Wm. & Mary Bus. L. Rev. 479 (2019):

Concern for the tax treatment of charitable contributions has increased as a result of the Tax Cuts and Jobs Act of 2017. Although the new law increased the limitation of deductible charitable contributions to 60 percent of adjusted gross income, the standard deduction was also increased. Increasing the standard deduction is expected to reduce the number of taxpayers who are able to itemize their deductions in the next tax year, which is expected to reduce charitable giving in the future. This Article discusses proposals to amend the Internal Revenue Code to promote charitable giving, including a non-itemizer deduction.

In addition, random acts of charity are explained, and consideration of those acts as charitable contributions for purposes of the charitable contribution tax deduction is proposed.

A Philosopher Asks: Should Work Be Our Passion, Or Our Duty?

New York Times op-ed:  Should Work Be Passion, or Duty?, by Firmin DeBrabander (Professor of Philosophy, Maryland Institute College of Art):

Too many of us expect our jobs to give meaning to our lives. There is a better way.

Americans are uniquely obsessed with work. Could any other nation come up with a product like Soylent, a meal substitute, not for the elderly, the poor or the malnourished, but for software engineers, Wall Street brokers, tech entrepreneurs and others who don’t want to be diverted from their work by the time consuming intricacies of a meal? Could you imagine the French conceiving such a thing?

While other wealthy nations have shortened the workweek, given their citizens more free time and schemed to make their lives more pleasant, stress-free and enjoyable, the United States offers a curious paradox: Though the standard of living has risen, and creature comforts are more readily and easily available — and though technological innovations have made it easier to work efficiently — people work more, not less.

Why is this?

One theory is that Americans have come to expect work to be a source of meaning in their lives. Our “conception of work has shifted from jobs to careers, to callings,” explains Derek Thompson, in a recent article in The Atlantic. There is a growing expectation, if not insistence, that work is to be your passion, your obsession — a veritable religion that Thompson dubs “Workism.” This is especially pronounced among the upper classes — precisely those people who do not need to obsess over work, at least for material concerns.

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The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #2 and #5:

1. [464 Downloads]  Five Key Research Findings on Wealth Taxation for the Super Rich, by David Gamage (Indiana)
2. [307 Downloads]  An Introduction to Tax Careers for J.D.s, by Heather Field (UC-Hastings)
3. [148 Downloads]  The Superiority of the Digital Services Tax over Significant Digital Presence Proposals, by Wei Cui (University of British Columbia)
4. [128 Downloads]  Partnership Audit Rules: After the Final Regulations, by Monica Gianni (California State University Northridge)
5. [92 Downloads]  Cannabis Businesses and Passthrough Deduction Availability, by Daniel Rowe (Green Hasson & Janks, Los Angeles)

This Week's Ten Most Popular TaxProf Blog Posts

1. Wall Street Journal, The Collapse Of The Income And Wealth Inequality Argument
2. Inside Higher Ed, Secret Presidential Searches And Faculty Fury
3. Bryan Camp (Texas Tech), Lesson From The Tax Court: Charity Used To Gin Up Business Loses Tax Exemption
4. Bryce Clayton Newell (Kentucky), 2019 Meta-Ranking of Flagship U.S. Law Reviews
5. Eugene Fama (University of Chicago; Nobel Laureate in Economics), Property Tax = Income Tax On Housing
6. Best Choice Schools, The 50 Most Impressive Law School Buildings in the World
7. Palma Joy Strand (Creighton) & Nicholas Mirkay (Hawaii), Racialized Tax Inequity: Wealth, Racism, and The U.S. System of Taxation
8. Online Paralegal Programs, The 30 Most Fun Law Schools
9. Jeff Hoopes (North Carolina), Welcome to Our New Blog, Write-Off: The Tax Blog
10. Wall Street Journal/Times Higher Education, College Rankings

University of Alabama, Hugh Culverhouse End Spat After Return Of $21.5 Million Gift And Removal Of Donor's Name From Law School

Following up on my previous posts (links below):  Joint Statement by Eliza and Hugh Culverhouse, Jr. and the Board of Trustees of The University of Alabama:

The University of Alabama and Hugh Culverhouse, Jr. agree that they had different views regarding the future of The University of Alabama School of Law. On that basis, the parties agreed to the University’s return of the Culverhouse donations for the benefit of the law school as well as reverting to the law school’s original name. All other statements made by either party regarding the decision to return Hugh Culverhouse, Jr.’s donations, or the removal of Hugh Culverhouse, Jr.’s name from The University of Alabama School of Law are withdrawn. This statement is the sole controlling statement by both parties regarding those matters, and neither party will issue any further statement as to the same.

The Walton Sun, University of Alabama, Hugh Culverhouse Jr. End Spat:

Months after the public fallout between the University of Alabama and its largest donor of the past decade saw the return of more than $21 million in gifts, the system released a joint statement with Hugh Culverhouse Jr. framing the spat as the result of divergent views about the future of the law school.

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Judge Recommends Dismissing Lawsuit Accusing Widener Law School Of Doctoring Job Stats

New Jersey Law Journal, Judge Recommends Dismissing Lawsuit Accusing Widener Law School of Doctoring Job Stats:

A lawsuit accusing Widener University School of Law of inflating job statistics is facing dismissal nearly seven years after it was filed.

U.S. Magistrate Judge Cathy Waldor recommended in a report made public Friday that the case be dismissed with prejudice for failure to prosecute. The recommendation comes after the sole remaining plaintiff, Gregory Emond, who is pro se, did not appear for an Aug. 27 hearing on an order to show cause on why the case should not be dismissed. Waldor’s recommendation is subject to approval by U.S. District Judge Susan Wigenton in 14 days after any objectors are allowed to be heard.

The suit against Widener was filed in 2012 as part of a movement accusing law schools of overstating their graduates’ success in finding legal employment. Similar suits were filed against DePaul University College of Law, John Marshall Law School, Golden Gate University School of Law, the University of San Francisco School of Law and the Maurice A. Deane School of Law at Hofstra University, among others. But law schools generally prevailed in the litigation. ...

Widener’s law school in Wilmington, Delaware, was accused of claiming that 90% of its graduates got jobs within nine months of graduation, without distinguishing between legal jobs and other positions. Lead plaintiff John Harnish, who obtained his law degree from Widener in 2009, claimed he was unable to find a law job and instead worked as a bartender. ...

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Can State-Level Carbon Taxes Work?

Katelyn Nicasio (J.D. 2019, Indiana), Note, States Rise to the Front of Climate Legislation, But Can a State-level Carbon Tax Work?, 94 Ind. L.J. 751 (2019):

This Note uses two recent Massachusetts carbon tax proposals to discuss the costs and benefits of such state-level climate change legislation but discusses similar regional proposals as well. Although a state carbon tax poses some limitations and concern for the increased tax burden relative to other states that have not imposed a tax, the adoption of state carbon taxes represents an important advancement in climate policy. Part I overviews legislative tactics used to combat climate change thus far, including common policy responses, and the current attitude of federal legislators toward the global climate crisis. Part II introduces the advantages and common criticisms of a carbon tax policy and concludes that a carbon tax would be an effective policy option. Next, Part III discusses recent state carbon tax proposals, focusing on the efforts of northeastern states to enact the nation’s first carbon tax law. Two Massachusetts proposals, Senate Bill 1821 and House Bill 1726, are introduced to provide the basis for an analysis of state carbon taxes. Finally, Part IV discusses the possibility of effective state-level climate change policy and analyzes the costs and benefits of the Massachusetts state proposals.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Drumbl's Tax Attorneys As Defenders Of Taxpayer Rights

This week, Hayes Holderness (Richmond) reviews Michelle Lyon Drumbl (Washington & Lee), Tax Attorneys as Defenders of Taxpayer Rights, 91 Temple L. Rev. ___ (2019):

Tax attorneys serve many purposes. Two examples have been recently explored in this review series: tax attorneys may provide de facto insurance to their clients or may serve as agents of social justice. To these examples, Michelle Drumbl’s forthcoming essay adds another: tax attorneys defend taxpayer rights. One might be tempted to respond, “Well, of course they do; each tax attorney’s job is to make sure her clients only pay the tax they owe.” The strength of Drumbl’s essay is not to contradict this observation or to dwell on it, but to expose it as too narrow a view of the tax attorney’s function.

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Weekly Legal Education Roundup

• ABA Journal, Cooley Law School cuts tuition and seeks to close satellite campus
• Yvonne Dutton, Margaret Ryznar & Kayleigh Long (Indiana-Indianapolis), Assessing Asynchronous Online Learning in Law Schools: Students Say Online Classes Deliver
• Scott Fruehwald (Legal Skills Prof Blog), The Importance of Revision in Legal Writing
• Scott Fruehwald (Legal Skills Prof Blog), Tribute to Alli Gerkman
• James Levy (Nova SE), New phone app lets you point camera at legal citation then pulls case from Google Scholar

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Tax Policy In The Trump Administration

• American Prospect, The Republican War on the Capital Gains Tax
• Bloomberg News, Warren Says Wealth Tax Plan Isn't a Cranky Idea
• Bloomberg Opinion, The Holes in Warren’s Wealth Tax Can’t Be Plugged
• Bloomberg Tax, Capital Gains Tax Shift Backers Shake Off Legal Concerns
• Bloomberg Tax, Chicago Reaps Revenue Bonanza With Cloud Computing Tax

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Trump's Taxes And Tax Returns

• The Guardian, Man Tried to Hack Trump's Tax Returns in 'Wayne's World Scene Gone Awry' 
• The Hill, Deutsche Bank Throws Curve Into Trump Tax Return Fight
• Huffington Post, Democrats Just Got A Break In Their Trump Tax Return Case
• National Law Journal, After Speedy Subpoena Cases, Trump Tax Disputes Linger
• Philadelphia Inquirer, Haverford Student Who Tried to Hack IRS for Trump Tax returns Pleads Guilty, Could Get 2 Years in Jail, $200,000 Fine

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Shanske Presents The States Should And Can Conform To GILTI Today At Minnesota

Darien Shanske (UC-Davis) presents The States Should and Can Conform to GILTI at Minnesota today as part of its Perspectives on Taxation Lecture Series hosted by Kristin Hickman:

Corporate income taxes are a critical revenue source for both state governments and the U.S. federal government. Yet corporate income tax revenue collections have been increasingly plagued by taxpayers’ use of artificial tax avoidance mechanisms that shift profits to tax havens and other (low-tax) foreign jurisdictions. The sweeping Tax Cuts and Jobs Act of 2017 attempted to deal with this problem in a number of ways, the most important of which is the Global Income Low-Taxed Income (or “GILTI”) regime. This presentation will present the case for state conformity to GILTI.

Darien Shanske (UC-Davis) & David Gamage (Indiana), Why States Can Tax the GILTI, 91 State Tax Notes 967 (Mar. 18, 2019):

A centerpiece of the 2017 federal tax legislation’s reforms to international corporate income tax rules is the new global intangible low-taxed income regime (or GILTI). In a prior essay, we argued that U.S. state governments should conform to GILTI. But might there be constitutional restrictions preventing state governments from doing so? This essay argues that state governments can constitutionally conform to the federal GILTI rules and thereby tax GILTI income as part of the states’ corporate income tax bases. However, in doing so, we explain that state governments will need to be attentive to background constitutional principles. 

Darien Shanske (UC-Davis) & David Gamage (Indiana), Why States Should Tax the GILTI, 91 State Tax Notes 751 (Mar. 4, 2019):

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Welcome To The Tax Blogosphere: Write-Off: The Tax Blog

Jeff Hoopes (North Carolina), Welcome to Our New Blog, Write-Off: The Tax Blog:

Welcome to our new blog, Write-Off: The Tax Blog, hosted by the UNC Tax Center. The purpose of this blog is to provide original, useful, compelling and timely tax information to the general public, especially those with an interest in tax policy.

There are other excellent tax policy blogs — so how is this one different? The content of this blog will be produced by tax scholars, many of whom understand taxation through the lens of an accountant. Academic accountants often have a different way of viewing tax policy, and we hope to provide that view on this blog. Accounting scholars have the economics-based research training needed to understand complex relationships using data, while simultaneously understanding the tax law. Many have worked at large accounting firms, therefore they understand the institutional background in which the tax system operates. We hope to bring that training and knowledge to bear in our posted tax-related thoughts, notes, news and notions.

Recent Posts:

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From Each According to His Ability?: An Analysis Of Endowment Taxation And Potential Earnings

Erick Sam (Duke University, Department of Philosophy), From Each According to His Ability?: An Analysis of Endowment Taxation and Potential Earnings:

This Article analyzes and critiques “ability taxation”, which taxes a person's "potential earnings." Despite this regime’s longstanding favor as a theoretical ideal for fair and efficient taxation among economists, certain philosophers and tax law scholars, little effort has been made to analyze what “potential earnings” means. This Article explores competing understandings of this notion. In so doing, it unearths a tension at the core of the ability tax program, involving a fundamental misalignment between the metaphysics and economics of ability taxation. It thus concludes that once we correctly understand its requirements we should reject the ability tax as unduly burdensome and unfair. This Article’s argument therefore constitutes a pressing challenge to the orthodoxy in public finance economics, as well as to the growing cadre of endowment tax partisans among political philosophers and scholars of tax law.

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2019 IFA International Tax Student Writing Competition (Sept. 30 Deadline)

The deadline in the International Fiscal Association's 2019 International Tax Student Writing Competition is September 30:

2019 IFA International Tax Student Writing Competition:
Subject: Any topic relating to U.S. taxation of income from international activities, including taxation under U.S. tax treaties.
Open to: All students during the 2018-19 academic year (including independent study and summer 2018 school courses) pursuing a graduate degree (J.D., L.L.M., S.J.D., M.S.T., MTA, Masters of Taxation, or similar program). Any appropriate papers written in fall 2018 or spring and summer 2019.
Publication: The winning author will be entitled to publish his/her article in the Tax Management International Journal, which is produced by Bloomberg BNA.
Submission Deadline:  September 30, 2019.
Prize:  $2,000 cash, plus expenses-paid invitation to the IFA USA Branch Annual Meeting in Boston on Feb 27-28, 2010.

Here are the recent winners:

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2020 Wall Street Journal/Times Higher Education College Rankings

2020 Wall Street Journal/Times Higher Education College Rankings (methodology):

Outcomes (40%):

• Graduation rate (11%)
• Value added to graduate salary (12%)
• Debt after graduation (7%)
• Academic reputation (10%)

Resources (30%):

• Finance per student (11%)
• Faculty per student (11%)
• Research papers per faculty (8%)

Engagement (20%):

• Student engagement (7%)
• Student recommendation (6%)
• Interaction with teachers and students (4%)
• Number of accredited programs (3%)

Environment (10%):

• Proportion of international students (2%)
• Student diversity (3%) 
• Student inclusion (2%)
• Staff diversity (3%)

The fourth annual WSJ/THE rankings list 801 schools. Here are the Top 10:

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The Impact of Tax Audits On The Continuation Of Businesses

Andrew Belnap (North Carolina), Jeffrey L. Hoopes (North Carolina), Edward L. Maydew (North Carolina) & Alex Turk (IRS), Real Effects of Tax Audits: Evidence from Firms Randomly Selected for IRS Examination:

Tax audits are a necessary component of the tax system but have potentially adverse real effects on the firms selected for audit. We examine the effects of tax audits on whether small firms continue to operate as a going concern. We use IRS data from both random and nonrandom tax audits and find that audited firms are less likely to persist as going concerns following the audit. However, we find that the effect is entirely isolated to firms that underreported their tax liability.

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How To Give A Great Job Talk

Chronicle of Higher Education op-ed:  How to Give an Excellent STEM Job Talk, by Russ E. Carpenter (Stanford) & R. Parrish Waters (University of Mary Washington):

For Ph.D.s on the job market in the sciences, no element of the hiring process is more important for making or breaking your prospects than the job talk.

At some point in the 2019-20 hiring season — once you’ve made the long journey from application packet to Skype interview to campus visit — you will have to deliver a job talk. It will play a large part in determining the next decade or more of your career.

Yes, other aspects of the campus interview — the one-on-ones, the dinners with professors, the lunches with students, the meetings with administrators — will influence the ultimate decision about whether you are hired. But the job talk is where you can really shine — or very publicly fail. It is where you are given the stage to showcase your lecturing abilities, convey who you are and what you do, and, importantly, demonstrate how you could contribute to the department and the institution.

Given the impact of this segment of the interview, you would think that less-than-stellar job talks were a rare find. Sadly, far too many applicants find themselves in the midst of a cringeworthy monologue, full of disconnected experiments and overly complex graphs with no central theme or story. Worse yet are the applicants who never realize that at all, as their audience struggles to follow along (and mentally moves the candidates into the "no" pile).

In short, regardless of the number of lines on your CV, a poor job talk is the quickest way to sink your chances of landing the position. But, dear reader, you already know that — as we’re not the first to stress the importance of the job talk. A quick search turns up articles stressing practical (a checklist of what to include), professional (know your audience), and obvious (practice, practice, practice) advice.

Here, rather than repackage those tips, we stress points that we see as fundamental to a good job talk.

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The TCJA Creates Tax Chaos For All North American Sports Leagues

Kari Smoker (Ithaca College), Alan Pogroszewski (St. John Fisher College), Kyle Stich (AFP Analytics) & Kevin Arnold (Firley, Moran, Freer & Eassa, Syracuse), Pandora's Box Enters the Batter's Box: How the Tax Cuts and Jobs Act's Unintended Consequence Places MLB, and All North American Leagues, in Tax Chaos, 26 Jeffrey S. Moorad Sports L.J. 291-322 (2019):

This Article explores many of the uncertainties created by the new federal tax framework by examining some key issues unique to the business of sports. Section II examines the specific change to Internal Revenue Code (“IRC”) Section 1031 that affects professional sports trades. Section III looks at MLB’s unique standing in the business world since securing a rare antitrust exemption almost a century ago that it has maintained, more or less, through legislative and judicial acquiescence. Section IV examines Section 1031 like-kind exchanges, why such transactions were initially tax-exempt, the IRS’s somewhat surprising proclamation that MLB trades qualify as 1031 exchanges, and how the IRS may have turned a blind eye to enforcing Section 1031’s technical rules and reporting requirements for professional sports trades. Section IV also outlines the new tax law, how it potentially impacts all major league sports, and some of the complexities involved.

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Secret Presidential Searches And Faculty Fury

Inside Higher Ed, Secret Searches and Faculty Fury:

In recent years one of the greatest points of contention between faculty members and their institutions’ governing boards has been over the board’s arguably most important function: the search for and the selection of a president to lead the institution.

Throughout higher education, campus stakeholders are increasingly disapproving of and speaking publicly about searches conducted by their institution. One of the more frequent complaints is the growing tendency of governing boards to conduct a “secret search.” In these cases, those involved in the process keep the names of any potential candidates under wraps until an appointee is announced, or in other, similar cases, boards announce a sole finalist who will meet with campus leaders and get to know the institution before being officially appointed.

However, as these instances and the faculty outrage that often comes with them become more frequent, some more recent searches where multiple candidates have been announced before the board votes have not been without significant controversy. ...

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Avi-Yonah: The Shaky Case Against Wealth Taxation

Reuven Avi-Yonah (Michigan), The Shaky Case Against Wealth Taxation:

Ever since Senator Elizabeth Warren (D-MA) introduced her proposed wealth tax, there has been a storm of criticism against it not just from predictable sources like the Tax Foundation or Fortune magazine, but also from Democrats like former Secretary of the Treasury Larry Summers. This criticism is misguided and should not prevent other Democrats from supporting Senator Warren’s proposal.

Under Warren’s wealth tax plan, the richest 75,000 American households would pay an annual 2 percent tax on all assets—net worth—above $50 million, and a 3 percent tax on every dollar of net worth above $1 billion. University of California, Berkeley, economists Gabriel Zucman and Emmanuel Saez, who study wealth inequality, say Warren’s tax would raise around $2.75 trillion over ten years. The revenue would be used to fund, among other things, universal child care for every child age zero to five, free tuition and fees for all public colleges, and forgiveness of 95 percent of student debt.

There are four major lines of criticism of the Warren proposal, and they are all wrong. ...

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Lipshaw: Lawyering Somewhere Between Computation And The Will To Act

Jeffrey M. Lipshaw (Suffolk), Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection:

This is a reflection on machine and human contributions to lawyering in the digital age. Increasingly capable machines can already unleash massive processing power on vast stores of discovery and research data to assess relevancies and, at times, to predict legal outcomes. At the same time, there is wide acceptance, at least among legal academics, of the conclusions from behavioral psychology that slow, deliberative “System 2” thinking (perhaps replicated computationally) needs to control the heuristics and biases to which fast, intuitive “System 1” thinking is prone. Together, those trends portend computational deliberation – artificial intelligence or machine learning – substituting for human thinking in more and more of a lawyer’s professional functions.

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Tampon Taxes And Menstrual Equity

Jennifer Weiss-Wolf (Brennan Center for Justice, NYU), U.S. Policymaking to Address Menstruation: Advancing an Equity Agenda, 25 Wm. & Mary J. Race, Gender & Soc. Just. 493 (2019):

On any given day there are eight hundred million people on the planet who are menstruating, of whom at least five hundred million lack adequate resources—basic supplies, facilities, information, support—for managing their periods. ... a new social and policy movement has coalesced in the United States, centered on the concept of “menstrual equity”—a phrase first introduced in 2015 and further developed in the 2017 book Periods Gone Public: Taking a Stand for Menstrual Equity, which makes the case for an agenda that advances systemic solutions to address the societal and financial inequities caused by menstruation.10 The menstrual equity frame is distinct in its direct association of periods with the values of democratic participation, citizen engagement, gender parity, and economic opportunity.

This Article will explore the political and legal tenets of menstrual equity. It will explain why this frame has proven particularly potent and detail recent, successful policy advocacy in which momentum has been both unusually bipartisan and swift.

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Rees-Jones & Taubinsky: Taxpayer Behavior Is Governed By Their Average Tax Rate, Not Their Marginal Tax Rate

Alex Rees-Jones (Cornell) & Dmitry Taubinsky (UC-Berkeley), Measuring “Schmeduling”:

What mental models do individuals use to approximate their tax schedule? Using incentivized forecasts of the U.S. Federal income tax schedule, we estimate the prevalence of the “schmeduling” heuristics for constructing mental representations of nonlinear incentive schemes. We find evidence of widespread reliance on the “ironing” heuristic, which linearizes the tax schedule using one’s average tax rate. In our preferred specification, 43% of the population irons. We find no evidence of reliance on the “spotlighting” heuristic, which linearizes the tax schedule using one’s marginal tax rate. We show that the presence of ironing rationalizes a number of empirical patterns in individuals’ perceptions of tax liability across the income distribution. Furthermore, while our empirical framework accommodates a rich class of other misperceptions, we find that a simple model including only ironers and correct forecasters accurately predicts average underestimation of marginal tax rates. We replicate our finding of prevalent ironing, and a lack of other systematic misperceptions, in a controlled experiment that studies real-stakes decisions across exogenously varied tax schedules. To illustrate the policy relevance of the ironing heuristic, we show that it augments the benefits of progressive taxation in a standard model of earnings choice. We quantify these benefits in a calibrated model of the U.S. tax system.

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The Top 100 Business Schools For Faculty Research

The University of Texas-Dallas Naveen Jindal School of Management has released its annual ranking of the Top 100 business schools based on faculty research published in the Top 24 journals. The current ranking is based on publications in the most recent five-year period (2014-2018). Here are the Top 10 in faculty publications, along with each school's in new SSRN download rankings and overall ranking in Poets & Quants (US News (35%), Forbes (25%), Financial Times (15%), Businessweek (15%), and The Economist (10%)):

Faculty Research		School	Overall
Publications	Downloads		Poets & Quants (US News, Forbes, Financial Times, Businessweek, The Economist)
1	4	Penn (Wharton)	2
2	1	NYU (Stern)	16
3	3	Harvard	1
4	38	Texas-Dallas (Jindal)	45
5	8	Columbia	7
6	13	USC (Marshall)	22
7	2	Chicago (Booth)	4
8	11	Michigan (Ross)	10
9	5	MIT (Sloan)	6
10	6	Stanford	3

ABA Tax Section Releases 19th 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 19th 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 2020 Midyear Meeting, January 30-February 1, in Boca Raton, FL, where each team will defend its submission before a panel of judges representing the country’s top tax practitioners and government officials, including Tax Court judges.

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WSJ: ‘Father Is Surgeon,’ ‘1 Mil Pledge’: The Role of Money In USC Admissions

Wall Street Journal, ‘Father Is Surgeon,’ ‘1 Mil Pledge’: The Role of Money in USC Admissions:

Emails among athletics, admissions and fundraising officials at the University of Southern California show the school explicitly weighed how much money applicants’ families could donate when determining whether to admit students.

The messages were filed Tuesday in a Boston federal court by a lawyer for two parents accused in the nationwide college-admissions cheating scandal. He claims USC wasn’t a victim of any scheme, but rather based admission decisions in part on expectations of donations from well-heeled families.

They include intricate spreadsheets color-coded by university officials to track “special-interest applicants”—applicants flagged for their connections to USC officials, trustees, donors or other VIPs—with direct references to past and prospective dollar amounts of gifts from their families.

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Virginia Tax Review Publishes New Issue

The Virginia Tax Review has published Vol. 39, No. 3 (Fall 2018):

• Charles Beller (J.D. 2019, Virginia), Student Article, GILTI: "Made in America" for European Tax: Unilateral Measures & Cooperative Surplus in the International Tax Competition Game, 38 Va. Tax Rev. 271 (2019)
• Christine A. Davis (S.J.D. (Taxation) 2020, Florida), Is the Tax Cuts and Jobs Act GILTI of Anti-simplification?, 38 Va. Tax Rev. 315 (2019)
• Ethan Yale (Virginia),  Mutual Fund Tax Overhang, 38 Va. Tax Rev. 397 (2019)

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Marian: Blockchain Havens And The Need For Their Internationally-Coordinated Regulation

Omri Marian (UC-Irvine), Blockchain Havens and the Need for Their Internationally-Coordinated Regulation, 20 N.C. J.L. & Tech. 529 (2019):

This paper describes the rise of a new form of regulatory havens. Jurisdictions that have traditionally been characterized as “tax havens” are gradually becoming hubs for blockchain-based ventures. These jurisdictions attract blockchain entrepreneurs by offering refuge from regulatory and tax burdens imposed by developed economies. These new “Blockchain Havens” create a regulatory “race to the bottom” that is traditionally associated with the world of international tax evasion and avoidance. Over the past several years, developed economies have put to use—mostly through coordinated efforts—several regulatory frameworks aimed to address some of the negative effects of tax havens. These regulatory instruments are aimed against the haven jurisdictions themselves, or the private institutions operating in such jurisdictions. However, this paper argues that the unique nature of blockchain-based technology—most importantly, decentralization and temper resistance—makes such traditional anti tax haven policies ineffective in the blockchain context.

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Law School Dean Demographics

Karen Sloan, Ahead of the Curve: Tracking Law Deans:

Jim Rosenblatt, himself a former law dean at Mississippi College School of Law, contacted me last week to let me know that he had expanded his always useful law deans database to add gender and ethnicity fields. Here are some of the highlights:

• 38% of current deans are women—a figure that’s even higher than I realized. (I thought it was about a third.)
• 26% are minorities. Among them: 15% are African American; 7% are Hispanic; 3% are Asian/Pacific Islander; and 1% are Native American. 
• More than a quarter of the 200 or so law deans graduated from either Harvard Law School or Yale Law School, which is a figure unlikely to surprise anyone familiar with the legal academy and its obsession with pedigree.
• The average tenure of current law deans is just over 3.5 years [the median is 3.2 years]. ...

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The Tax Treatment Of Self-created Intellectual Property After The TCJA

Savannah Story (J.D. Georgia, 2020), Note, Extraordinary Ideas Now Ordinary Income: Incentives Created by the Tax Cut and Jobs Act's New Treatment of Self-created Intellectual Property, 26 J. Intell. Prop. L. 330 (2019):

The effects of TCJA's revision of 26 U.S.C. 5 1221 are uncertain. The legal effect of the multiple contradictions regarding intellectual property income in the code are uncertain. The stability of this policy for years to come is uncertain. With uncertainty around every corner, the true effect this policy has on tax planning is difficult to predict. The instability could result in no change in current behavior and innovation and patent location would remain at the status quo.

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Batchelder Presents Optimal Tax Theory As A Theory Of Distributive Justice Today At NYU

Lily Batchelder (NYU) presents Optimal Tax Theory as a Theory of Distributive Justice at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

The literature on taxation and transfers includes two prominent egalitarian theories of distributive justice: resource egalitarianism and welfare egalitarianism, as elaborated through optimal tax theory. With the recent explosion in empirical tax research, optimal tax theory has garnered even greater prominence. But non-welfarists remain unpersuaded, arguing it fails to adequately address a number of serious philosophical objections.

This essay considers the primary non-welfarist critiques of egalitarian optimal tax theory, paying particular attention to those of resource egalitarians. In the process, it argues the gap between these two theories is narrower than most appreciate. Indeed, once optimal tax theory is read broadly and deeply, the ideal policy design principles implied by each theory largely mimic the other. Furthermore, on challenging issues where the stance of each theory is unsettled, the tools of optimal tax frequently offer a clearer and stronger response.

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ABA Employees Are Eligible For Public Interest Loan Forgiveness Program, Perhaps Paving Way For Employees Of Other Non-Legal Service Providers

Law.com, ABA Secures Loan Forgiveness Status After 3-Year Battle:

The American Bar Association has come out ahead in its legal fight to ensure that all of its employees qualify for the federal government’s Public Service Loan Forgiveness program.

The ABA has been battling the U.S. Department of Education in court since December 2016, when it filed a lawsuit in the U.S. District Court of the District of Columbia after several employees were informed by the servicer of their government-issued student loans that the ABA is not an eligible employer under the loan forgiveness program.

But the ABA said this week that the loan servicer has reversed course and sent letters to those borrowers stating that it had made an error and that the ABA is a qualified employer for the program. That decision paves the way for any ABA employee to have their federal loans forgiven after 10 years, provided they meet the many criteria laid out under the program.

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Hemel: Taxing Wealth In An Uncertain World

Daniel Hemel (Chicago), Taxing Wealth in an Uncertain World:

An annual wealth tax, a mark-to-market income tax, and a retrospective capital gains tax are three approaches to capital taxation that yield roughly equivalent outcomes under certain conditions. The three approaches differ starkly, however, in their exposure to uncertainty of various types. This essay seeks to highlight the effect of uncertainty on the implementation and operation of alternative capital taxation regimes. An annual wealth tax is highly vulnerable to valuation uncertainty and constitutional uncertainty, but less so to political uncertainty. A retrospective capital gains tax, by contrast, minimizes valuation uncertainty and effectively eliminates constitutional uncertainty but remains highly exposed to political uncertainty. A mark-to-market regime falls somewhere between the two extremes on dimensions of political and constitutional uncertainty but shares in a wealth tax’s exposure to valuation uncertainty.

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Online Law School Classes Deliver Results For Law Students

Yvonne Dutton, Margaret Ryznar & Kayleigh Long (Indiana-Indianapolis), Assessing Asynchronous Online Learning in Law Schools: Students Say Online Classes Deliver, 96 Denv. L. Rev. 493 (2019):

This is the first article to provide empirical data on the effectiveness of distance education in law schools since the ABA this summer approved increasing the total number of credits that law students could earn through online classes from 15 to 30. Our data, composed of law student surveys and focus groups, reveal not only the success of distance education in their experience, but also the methods that are most effective for them.

Margaret Ryznar, Insights on Online Teaching:

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Lesson From The Tax Court: Charity Used To Gin Up Business Loses Tax Exemption

I don’t carry a cell phone for a variety of idiosyncratic reasons.  My accommodating wife lets me keep our home phone, a land-line we got 20 years ago.  She no longer answers it, however, because we get a lot of spam calls.  Sure, it’s on the FTC’s Do Not Call Registry, but that does not protect us from certain types of spam, particularly charity spam and polling spam.

This charity loophole in the Do Not Call system is the basis for today’s lesson in substance over form.  In Giving Hearts, Inc. v. Commissioner, T.C. Memo 2019-94 (July 29, 2019), Judge Guy teaches how the operational test in tax exempt entity taxation looks through formal agreements to focus on function.   Thus, a charity created to provide cover for a replacement windows telemarketing business was not really a charity.

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