Paul L. Caron
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Monday, September 20, 2021

Book, Fogg & Olson Present Reducing Administrative Burdens To Protect Taxpayer Rights Today At Loyola-L.A.

Leslie Book (Villanova; Google Scholar), T. Keith Fogg (Harvard), & Nina Olson (Center for Taxpayer Rights) present Reducing Administrative Burdens to Protect Taxpayer Rights virtually today at Loyola-L.A. as part of its Tax Policy Colloquium:

Book-fogg-olsonThe tax system designed by Congress imposes significant administrative burdens on taxpayers. IRS decisions regarding how it administers tax laws can add to congressionally imposed burdens. The administrative burdens are consequential and hurt some people, especially lower- or moderate-income individual taxpayers, more than others. While the IRS strives to measure and reduce the time and money taxpayers spend to comply with their tax obligations, it does not consider the effect administrative burdens have on taxpayer rights, including the right to be informed, the right to pay no more than the correct amount of tax, and the right to a fair and just tax system.

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September 20, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Lesson From The Tax Court: Failure To Understand Issue Preclusion May Trigger Sanctions

Camp (2021)Some people just cannot take no for an answer.  That is one of the reasons §6673 permits the Tax Court to impose a penalty of up to $25,000 on taxpayers who stubbornly present either frivolous or groundless arguments.

It is sometimes difficult, however, to distinguish a “no” from a “not now.”  Karson C. Kaebel v. Commissioner, T.C. Memo. 2021-109 (Sept. 9, 2021) (Judge Halpern), teaches a good lesson about issue preclusion, which is the important legal doctrine that tells us when “no” means “no.”  The taxpayer there asked the Tax Court to make the IRS take back a certification it had sent to the State Department.  But the reasons the taxpayer offered had already been rejected by both the Tax Court and the Court of Appeals in prior cases brought by the taxpayer about different subjects.  Judge Halpern explains why those no’s were really and truly no’s.  He also considers imposing §6673 penalties for the taxpayer’s intransigence.  So this will be a good lesson to learn, if for no other reason than to avoid penalties!   Details below the fold.

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September 20, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

Sunday, September 19, 2021

The Top Five New Tax Papers

There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #3:

  1. SSRN Logo (2018) [493 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John Townsend (Houston)
  2. [356 Downloads]  Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument, by Yariv Brauner (Florida; Google Scholar)
  3. [304 Downloads]  Mega-IRAs, Mega-401(k)s, and Other Mega-Retirement Accounts: Statement for the Record, by Daniel Hemel (Chicago; Google Scholar) & Steven Rosenthal (Tax Policy Center)
  4. [292 Downloads]  State Aid Prohibition — The New GAAR in Town, by Joachim Englisch (Muenster)
  5. [166 Downloads]  New Puzzles In International Tax Agreements, by Wei Cui (British Columbia; Google Scholar)

September 19, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, September 17, 2021

Mason & Knoll Present Unbundling Undue Burdens Today At Florida

Ruth Mason (Virginia; Google Scholar) & Michael Knoll (Pennsylvania) present Unbundling Undue Burdens virtually today at Florida as part of its Tax Policy Colloquium hosted by David Hasen:

Mason-knollCriticizing dormant Commerce Clause doctrine for, among other reasons, involving arbitrary distinctions and inviting judicial legislation, jurists and commentators have advocated for its abandonment or severe curtailment. This Article shows that when dormant Commerce Clause cases are divided by the type of burden they impose on interstate commerce, the need for different approaches to different types of cases emerges. Unbundling the doctrine helps explain the Supreme Court’s various doctrinal approaches in the cases, making it less ad hoc and haphazard and more connected to its justifications, which lie in federalism and the need to preserve a smoothly functioning national market.

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September 17, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Kim Presents A New Framework For Digital Taxation Today At Boston College

Christine Kim (Utah; Google Scholar) presents A New Framework for Digital Taxation (with Reuven Avi-Yonah (Michigan; Google Scholar) & Karen Sam)) virtually at Boston College today as part of its Tax Policy Collaborative:

Christine-kimThe international tax regime has wide implications for business, trade, and the international political economy. Under current law, multinational enterprises do not pay their fair share of taxes to market countries where profits are generated because market countries are only allowed to tax companies with a physical presence there. Digital companies, like Google and Amazon, can operate entirely online, thereby avoiding market country taxes. Multinationals can also exploit existing tax rules by shifting their profits to low-tax jurisdictions, thereby avoiding taxes in the residence country where their headquarters are located.

Recently, a proposal to tackle these issues was announced, endorsed by more than 130 countries. This “Inclusive Framework” proposal sets forth two Pillars to reform the outdated international tax regimes by addressing digital taxation (Pillar One) and global minimum tax (Pillar Two). However, it is doubtful that the Inclusive Framework will reach a consensus, especially on Pillar One. As the details of Pillar One have become increasingly complex and degraded by political compromises and carve-outs, it risks being a framework without substance. Also, countries are unlikely to repeal an established tax instrument, Digital Services Taxes (DSTs), which is an adamant requirement of the United States in adopting Pillar One.

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September 17, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Next Week's Virtual Tax Workshops

Monday, September 20: Leslie Book (Villanova; Google Scholar), T. Keith Fogg (Harvard), & Nina Olson (Center for Taxpayer Rights) will present Reducing Administrative Burdens to Protect Taxpayer Rights virtually at Loyola as part of its Tax Policy Colloquium. If you would like to attend, please RSVP here

Tuesday, September 21: Gabrielle Pepin (Upjohn Institute; Google Scholar) will present How Would a Permanently Refundable Child and Dependent Care Credit Affect Eligibility, Benefits, and Incentives? virtually at Georgetown as part of its Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle

Wednesday, September 22: Tessa Davis (South Carolina) will present Tax Narratives: A Critical Tax Perspective on the Biden Tax Plan virtually at Copenhagen as part of its Tax Colloquium Seminars. If you would like to attend, please register here

Wednesday, September 22: Ruth Mason (Virginia; Google Scholar) & Michael Knoll (Penn) will present Unbundling Undue Burdens virtually at UC-Irvine as part of its Tax Policy Colloquium. If you would like to attend, please contact gradtax@law.uci.edu

Thursday, September 23: Francine Lipman (UNLV; Google Scholar) will present Tax Audits, Economics, and Racism virtually at Indiana as part of its Tax Policy Colloquium. If you would like to attend, please contact Leandra Lederman

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September 17, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Mark-To-Market (Or Wealth) Taxation In The U.S.: Evidence From Options

Paul Mason (Baylor) & Steven Utke (Connecticut; Google Scholar), Mark-to-Market (or Wealth) Taxation in the U.S.: Evidence from Options:

Recent U.S. tax proposals under various names (e.g., wealth taxes, estate tax reform, etc.) center on mark-to-market (MTM) taxation, which eliminates investors’ ability to defer or avoid capital gains taxes. To provide insight on potential effects of these tax proposals, we exploit a unique U.S. setting where “index” options on the S&P 500 Index (SPX) face MTM taxation whereas nearly identical “non-index” options on the exchange traded fund (ETF) tracking the S&P 500 Index (SPY) do not.

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September 17, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, September 16, 2021

Avi-Yonah: The International Tax Regime At 100 — Reflections On The OECD's BEPS Project

Reuven Avi-Yonah (Michigan; Google Scholar), The International Tax Regime at 100: Reflections on the OECD's BEPS Project:

This essay will consider the outcome of Pillars One and Two in light of the history of international taxation since the foundation of the international tax regime in 1923. Specifically, it will consider how Pillar One fits with efforts to redefine the source of active income in light of the digital revolution, and the ways in which Pillar Two implements the single tax principle, which can be traced back to the first model treaty from 1927. Both of those ideas were already articulated and developed in my own early writing on international taxation from the 1990s, when the Internet was in its infancy.

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September 16, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

How Does Removing The Tax Benefits Of Debt Affect Firms? Evidence From The 2017 U.S. Tax Reform

Ali Sanati (American; Google Scholar), How Does Removing the Tax Benefits of Debt Affect Firms? Evidence from the 2017 US Tax Reform:

Despite extensive efforts, the relation between tax incentives and corporate capital structure is an open question. The 2017 US tax reform creates an opportunity to directly estimate this relation. The reform limits the tax advantage of debt for all firms except for small businesses with average sales below $25 million. I use the exception threshold in a regression discontinuity design and show that corporate debt declines nearly dollar for dollar as the present value of the tax benefits of debt shrinks. Treated firms do not raise equity to replace debt, and they decrease investments and hiring, consistent with a rise in the cost of external financing. Confirming the tax channel, treatment effects are stronger in firms with more profits and smaller non-debt tax shields. Comparing the size of the debt tax shield across the firm size distribution suggests that the estimates likely provide a lower bound for the effects in large corporations.

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September 16, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Saying the Quiet Parts Out Loud: Teaching Students How Law School Works

Alexa Chew (North Carolina; Google Scholar) & Rachel Gurvich (North Carolina), Saying the Quiet Parts Out Loud: Teaching Students How Law School Works:

Like the law we teach our students, legal education itself isn’t neutral. It is the product of both structural forces and individual decisions. Hierarchy and structural inequality permeate our society, so of course they permeate the institutions within our society, including law schools. But law schools are not only passive recipients of these permeating atoms of injustice. They have some agency in determining which inequities to nurture (or not) in the learning environment. As it stands, though, the environment that students learn the law in can be an incubator of inequality.

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September 16, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Take Note: Teaching Law Students To Be Responsible Stewards Of Technology

Kristen E. Murray (Temple; Google Scholar), Take Note: Teaching Law Students to Be Responsible Stewards of Technology, 70 Cath. U. L. Rev. 201 (2021):

The modern lawyer cannot practice without some deployment of technology; practical and ethical obligations have made technological proficiency part of what it means to be practice-ready. These obligations complicate the question of what constitutes best practices in law school. Today’s law schools are filled with students who are digital natives but who do not necessarily leverage technology in maximally efficient ways, and faculty who span multiple generations, with varying amounts of skepticism about modern technology. Students are expected to use technology to read, prepare for class, take notes, and study for and take final exams. Professors might use technology to teach or assess student work, but students are often asked to leave technology out of the classroom because of professor expectations about distraction and notetaking. All of this is happening as we attempt to prepare students to enter a profession that is infused with both technological capabilities and obligations, including the rules of professional conduct. These capabilities and obligations will continue to evolve, grow, and change alongside companion changes in technologies.

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September 16, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Frye: Letter To The Yale Law Journal Forum

Brian Frye (Kentucky; Google Scholar), Letter to the Yale Law Journal Forum:

Yale Law Journal Logo (2018)This essay is a legal scholarship in the form of a letter to the Yale Law Journal Forum, reflecting on the nature of the market for legal scholarships. ...

I want to tell you about my scholarship. Every year I write another article about the same thing, just like everyone else. It’s a drag, but the summer bonus makes it worth the effort, and at this point, the articles almost write themselves. Recycling the literature review sure helps!

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September 16, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Wednesday, September 15, 2021

Christians Presents Tax Cooperation In An Unjust World Today At UC-Irvine

Allison Christians (McGill; Google Scholar) presents Tax Cooperation in an Unjust World virtually today at UC-Irvine as part of its Tax Policy Colloquium:

Tax Cooperation 2In this book [Tax Cooperation in an Unjust World (Oxford University Press Nov. 2021)], Professor Christians sets out to demonstrate the key role that the international tax system plays in achieving justice. To do so, we first establish that the international tax system currently allows states with great wealth to claim more than they are justifiably entitled to from the global economy. We then demonstrate that this status quo both facilitates and feeds off continued human suffering, and therefore violates even minimal conceptions of international distributive justice. Finally, we explain how this situation of ongoing injustice can be addressed through existing institutions and processes and show that a fairer international tax system could be achieved with incremental yet effective adaptation, that is, without requiring radical reform or a new world tax order.

In making these claims, the book connects theories about tax policy largely from the legal and economics literature to theories of international justice from philosophical literature. As with any interdisciplinary effort, doing so risks alienating both camps. We hope we have muted this risk by showing that foundational commitments of widely accepted conceptions of international justice are reflected in existing tax policy, even if norms and processes do not fully reflect those underlying principles.

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September 15, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Hemel & Lord: Revitalizing The Generation-Skipping Transfer Tax

Daniel Hemel (Chicago; Google Scholar) & Robert Lord (Americans for Tax Fairness), Revitalizing the Generation-Skipping Transfer Tax:

Congress first enacted the generation-skipping transfer (GST) tax in 1976 to protect the estate and gift tax base and to ensure that extraordinary fortunes would bear their fair share of the transfer tax burden. Nearly a half-century into the life of the GST tax, those goals remain unrealized. In recent decades, high-net-worth individuals have succeeded in shifting hundreds of billions of dollars to “dynasty trusts” that—under current law—are poised to escape federal wealth transfer taxation indefinitely. The rise of dynasty trusts reduces the revenue-raising potential of the estate and gift taxes and allows a privileged class to exert vast economic and political power based solely on an accident of birth.

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September 15, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Submission Of Law Student Articles For Publication

Nancy Levit (Google Scholar), Lawrence MacLachlan, Allen Rostron, Drew Greaves & Staci Pratt (UMKC), Submission of Law Student Articles for Publication:

Each year law students collectively write a large number of papers that could become law review articles but that are never published. Most law schools require students at some point during their time in law school to research and write an academic paper of publishable quality or seminar paper. Some of these are law review notes and comments that are not selected for publication. Others of these are papers written for specific substantive classes or to fulfill research and writing requirements.

Most of these student papers — even very worthy ones — will never be published or posted online. The publishing route for law students who want to publish in a venue other than their home law journal is not clearly marked. And many law reviews simply will not accept submissions from students outside their own school. Often, the publishing opportunities for non-law review members in their home school’s law review are also not well known.

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September 15, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Hemel: Should An Excise Tax On Stock Buybacks Also Apply To Cash M&A Deals?

Daniel Hemel (Chicago; Google Scholar), Should an Excise Tax on Stock Buybacks Also Apply to Cash M&A Deals?:

Senators Sherrod Brown (D-Ohio) and Ron Wyden (D-Oregon) introduced legislation this morning to impose a 2 percent excise tax on stock buybacks—a proposal that could serve as a significant “payfor” in the budget reconciliation bill moving through Congress now. An important decision in designing the excise tax is whether the tax should apply to transactions in which one corporation purchases another corporation’s stock (rather than repurchasing its own stock). The late William Andrews, a Harvard Law School professor and leading corporate tax scholar, considered this question in the early 1980s and concluded that the answer is “yes”—at least when the acquiring corporation ends up with majority control of the target. The current text of the legislation would not apply the tax to those transactions, though hopefully Andrews’s argument will persuade lawmakers to make a change.

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September 15, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, September 14, 2021

Brooks & Gamage Present The Indirect Tax Canon, Apportionment, And Drafting A Constitutional Wealth Tax Today At NYU

John Brooks (Georgetown; Google Scholar) & David Gamage (Indiana; Google Scholar) present The Indirect Tax Canon, Apportionment, and Drafting a Constitutional Wealth Tax virtually today at NYU as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

Brooks GamageThe Constitution requires that “direct taxes” be “apportioned”—that is, that the revenues collected from each State be in proportion to population. Based on this obscure provision, prior scholarship has debated whether unapportioned wealth tax or related accrual-income tax reforms should generally be held constitutional, unconstitutional, or whether specific proposals should be held constitutional and others unconstitutional.

This Article takes a different approach. Recognizing the real uncertainty about how the Supreme Court might ultimately decide, this Article explains how Congress can draft a reform to navigate through that uncertainty. Specifically, this Article explains how Congress can draft a wealth tax or accrual-income tax reform that should survive constitutional scrutiny regardless of how the Supreme Court might ultimately rule on the disputed constitutional questions.

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September 14, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Aslam & Shah Present Tec(h)tonic Shifts: Taxing The Digital Economy Today At Georgetown

Aqib Aslam (IMF) & Alpa Shah (IMF) present Tec(h)tonic Shifts: Taxing the 'Digital Economy' virtually today at Georgetown as part of its Tax Law and Public Finance Workshop Series hosted by Brian Galle:

Aslam-shahThe ever-increasing digitalization of businesses has accelerated the need to address the many shortcomings and unresolved issues within the international corporate income tax system. In particular, the customer or “user”—through their online activities—is now considered by many as being a critical driving force behind the value of digital services. Furthermore, the rapid growth of digital service providers over the last decade has made them an increasingly popular target for special taxes—similar to wealth and solidarity taxes—which can also help mobilize much-needed revenues in the wake of a crisis. This paper argues that a plausible conceptual case can be made to tax the value generated by users under the corporate income tax. 

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September 14, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Monday, September 13, 2021

Alfani Presents Economic Inequality In Preindustrial Times Today At Loyola-L.A.

Guido Alfani (Bocconi; Google Scholar) presents Economic Inequality in Preindustrial Times: Europe and Beyond virtually today at Loyola-L.A. as part of its Tax Policy Colloquium:

Guido_AlfaniRecent literature has reconstructed estimates of wealth and income inequality for a range of preindustrial, mostly European, societies covering medieval and early modern times, occasionally reaching back to antiquity and even prehistory. These estimates have radically improved our knowledge of distributive dynamics in the past. It now seems clear that in the period circa 1300–1800, inequality of both income and wealth grew almost monotonically almost everywhere in Europe, with the exception of the century-long phase of inequality decline triggered by the Black Death of 1347–52. 

Regarding the causes of inequality growth, recent literature ruled out economic growth as the main one. Other possible factors include population growth (also as mediated by inheritance systems) and especially regressive fiscal institutions (also as connected to the unequal distribution of political power). 

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September 13, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Elkins Presents A Scalar Conception Of Tax Residence For Individuals Today At NYU

David Elkins (Netanya, visiting NYU 2021-2022) presents A Scalar Conception of Tax Residence for Individuals at NYU today as part its Faculty Workshop Series:

David-elkinsResidence is one of the fundamental concepts in international taxation. As a rule, residents are taxed on their worldwide income while nonresidents are taxed only on their domestic-source income. The criteria for residence vary from country to country. Some countries look to physical presence. Other rely upon more obtuse concepts such as domicile, permanent home, ordinary residence, habitual abode, connections, or ties. Many countries use a variety of tests. Tax treaties typically employ a series of tie-breaking provisions to determine residency when each of the two signatories views an individual as a resident in accordance with its own domestic rules.

Despite the wide variety of tests for determining individual residence, all share a common underlying premise, namely that residence is a binary attribute. An individual either is or is not a resident. There are no shades of grey. An individual who barely satisfies the relevant test is classified as a resident, while an individual who just fails to do so is classified as a nonresident.

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September 13, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Lesson From The Tax Court: Retirement Plan Drafting Error Loses Taxpayer $51k Deduction

Camp (2022)As tax practitioners know, to err is human, but to forgive requires a new set of regs.  Gayle Gaston v. Commissioner, T.C. Memo. 2021-107 (Sept. 2, 2021) (Judge Marvel), teaches us the lesson that if you want to get the §404(a) deduction for contributions to a profit-sharing plan, you need to be sure to properly link the plan to the taxpayer’s trade or business. In this case, the taxpayer received substantial deferred compensation payments from Mary Kay Cosmetics after her separation from that company and made substantial contributions to a retirement plan her tax advisor drafted for her.  Unfortunately, her one-participant profit sharing plan did not identify any trade or business as the source of the plan contributions.  That was error.  Both the IRS and the Tax Court were unforgiving.  Details below the fold.

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September 13, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Sunday, September 12, 2021

The Top Five New Tax Papers

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

  1. SSRN Logo (2018) [414 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John A. Townsend (Houston)
  2. [348 Downloads]  Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument, by Yariv Brauner (Florida; Google Scholar)
  3. [287 Downloads]  State Aid Prohibition — The New GAAR in Town, by Joachim Englisch (Muenster)
  4. [175 Downloads]  Taxation And Law And Political Economy, by Jeremy Bearer-Friend (George Washington; Google Scholar), Ari Glogower (Ohio State; Google Scholar), Ariel Jurow Kleiman (San Diego; Google Scholar) & Clint Wallace (South Carolina, Google Scholar) (reviewed by Hayes Holderness (Richmond) here)
  5. [163 Downloads]  New Puzzles In International Tax Agreements, by Wei Cui (British Columbia; Google Scholar)

September 12, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, September 10, 2021

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Glogower's Comparing Capital Income And Wealth Taxes

This week, David Elkins (Netanya, visiting NYU 2021-2022) reviews a new article by Ari Glogower (Ohio State; Google Scholar), Comparing Capital Income and Wealth Taxes, 48 Pepp. L. Rev. 875 (2021):

Elkins (2018)

In this week’s article, Professor Glogower examines two proposals to reform the current tax system and improve progressivity. The first is a reformed capital income tax that would tax unrealized appreciation. The second is a wealth tax, under which individuals each year would pay a percentage of their net wealth. He evaluates these two proposals by considering their economic effects, administrability and avoidance opportunities, and constitutionality.

The author notes that if all capital produced a similar rate of return, then a reformed capital income tax and a wealth tax would be functionally equivalent: given a fixed return of x%, a y% income tax would be the same as an (x*y)% wealth tax. It is only because capital does not produce a fixed rate of return that the equivalence breaks down: relative to a reformed capital tax, a wealth tax would over-burden lower-yielding assets and would under-burden higher-yielding assets. Thus, in the real world, the normative question becomes: are we seeking to mitigate inequality of wealth or inequality of income? The former would best be served by a wealth tax, while the latter would best be served by a reformed income tax.

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September 10, 2021 in David Elkins, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week's Virtual Tax Workshops

Monday, September 13: Guido Alfani (Bocconi; Google Scholar) will present Economic Inequality in Preindustrial Times: Europe and Beyond virtually at Loyola as part of its Tax Policy Colloquium. If you would like to attend, please RSVP here

Tuesday, September 14: John Brooks (Georgetown; Google Scholar) & David Gamage (Indiana; Google Scholar) will present The Indirect Tax Canon, Apportionment, and Drafting a Constitutional Wealth Tax virtually at NYU as part of its Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro

Wednesday, September 15: Allison Christians (McGill; Google Scholar) will present Tax Cooperation in an Unjust World virtually at UCI as part of its Tax Policy Colloquium. If you would like to attend, please contact taxpolicy@law.uci.edu

Friday, September 17: Christine Kim (Utah; Google Scholar) will present A New Framework for Digital Taxation (with Reuven Avi-Yonah (Michigan; Google Scholar) & Karen Sam) virtually at Boston College as part of its Tax Policy Collaborative. If you would like to attend, please contact lawevent@bc.edu

Friday, September 17: Ruth Mason (Virginia; Google Scholar) & Michael Knoll (Penn) will present Unbundling Undue Burdens virtually at Florida as part of its Tax Policy Colloquium. If you would like to attend, please contact Ruth McIlhenny

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September 10, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Workshops | Permalink

Symposium: Tax Policy And Practice In The United States

Symposium, Beyond the Numbers: Tax Policy and Practice in the U.S., 52 Loy. U. Chi. L.J. 329-555 (2021):

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September 10, 2021 in Conferences, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Blue J Predicts With 77% Confidence That Reserve’s § 501(c)(15) Appeal Will Be Dismissed By The Tenth Circuit

Benjamin Alarie & Bettina Xue Griffin (Blue J Legal), Captive Insurance Appeal in Reserve Mechanical Will Likely Fail, 172 Tax Notes Fed. 1431 (Aug. 30, 2021):

Tax Notes Federal (2020)In this article, Alarie and Griffin examine the Tax Court’s decision in Reserve Mechanical [T.C. Memo. 2018-86] and the strength of its appeal on the issue of whether the taxpayer was exempt from tax as a valid insurance company under section 501(c)(15).

Conclusion
Blue J predicts with 77 percent confidence that Reserve’s appeal will be dismissed by the Tenth Circuit.

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September 10, 2021 in New Cases, Scholarship, Tax, Tax Analysts | Permalink

Microaggressions: What They Are And Why They Matter

Catharine P. Wells (Boston College; Google Scholar), Microaggressions: What They Are and Why They Matter, 24 Tex. Hisp. J.L. & Pol'y 61 (2017):

In this paper, I will talk specifically about the way in which microaggressions affect our students. Law schools are competitive places, and we need to understand microaggressions in this context. In the first section, I will examine some of the harms that microaggressions cause. In the second, I will discuss two forms of microaggression that are present in the law school environment. In each case, I will offer some brief comments about what law schools and law teachers could do to provide a more favorable environment in which all students — and especially students of color — can flourish.

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September 10, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Thursday, September 9, 2021

Wallace Presents The Democracy Criterion For Taxation Virtually Today At Indiana

Clint Wallace (South Carolina; Google Scholar) presents The Democracy Criterion for Taxation virtually today as part of the Indiana Tax Policy Colloquium hosted by Leandra Lederman:

Wallace_clintonTax scholars generally focus on the normative criteria of equity and efficiency in evaluating and designing tax policies, with little regard for governing context. Political theorists often focus on the conditions that shape a democratic community and can help it to flourish, with little regard for taxation. At a time when scholars are increasingly recognizing that public finance—and thus, taxation—is critical to repairing and sustaining democracies around the world, this Article begins to bridge the gap between tax theory and democratic theory.

This Article offers an account of democracy as a central consideration in taxation. I propose a “democracy criterion,” which would join equity and efficiency as a normative framework for evaluating tax policy in the design of any tax system or tax policy change. The democracy criterion described here captures inputs that contribute to democratic legitimacy and outputs that contribute to democratic vitality. On the inputs side, the democracy criterion asks: is the process that produces a change in tax law or tax rules democratically legitimate? This Article draws on democratic theory to presents one conception of democratic legitimacy for taxation. On the outputs side, the democracy criterion asks: does a change in tax law or tax rules strengthen or undermine democratic governance? Again drawing on democratic theory, this Article identifies connective tissues where taxation might enhance democracy.

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September 9, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Avi-Yonah: Gucci Gulch Redux—The Problems Of The Wyden Tax Reform Proposal

Reuven S. Avi-Yonah (Michigan; Google Scholar), Gucci Gulch Redux: The Problems of the Wyden Proposal, 172 Tax Notes Fed. 1417 (Aug. 30, 2021):

Tax Notes Federal (2020)In this article, Avi-Yonah critiques a recent U.S. tax reform proposal that would overhaul the global intangible low-taxed income, foreign-derived intangible income, and base erosion and anti-abuse tax regimes.

Conclusion
The Wyden proposal states that it is “a starting point for conversations in the Democratic caucus on how to reform the international tax system to meet shared goals.” I would suggest that there is a much better starting point, namely the Biden administration proposal. On every point that the Wyden proposal is different than the administration proposal, it is inferior.

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September 9, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Wednesday, September 8, 2021

Oei Presents World Tax Policy In The World Tax Polity Today At Copenhagen

Shu-Yi Oei (Boston College; Google Scholar) presents World Tax Policy in the World Tax Polity? An Event History Analysis of OECD/G20 BEPS Inclusive Framework Membership virtually today as part of the Copenhagen Business School Tax Colloquium hosted by Yvette Lind.

Shuyi-oeiThe last decade has seen the emergence of a new global tax order characterized by increased multilateral consensus and cooperation. World polity theory appears to be an obvious theoretical fit for conceptualizing this new order, which has been spearheaded by the OECD and G20. But what are the pathways by which this new “world tax polity” has emerged? Using event history regression methods, this Article investigates this question by studying the case of the OECD/G20 BEPS Inclusive Framework, a multilateral framework that currently includes 140 member countries, including 96 non-OECD, non-G20 countries.

How did these countries come to join the BEPS Inclusive Framework? World polity theory posits that the new multilateral Inclusive Framework could have been driven by normative, coercive, or mimetic processes. Of these possibilities, my Article finds that Inclusive Framework membership seems to have proliferated through a combination of normative and coercion-based pathways. Specifically, acculturation through prior involvement in certain OECD tax initiatives and inclusion in contemporaneous European Union tax haven “listing” (naming and shaming) processes was associated with a significantly higher hazard of Framework membership. By contrast, imitation of other countries did not appear to be a significant pathway.

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September 8, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Nonprofit Participation In Tax-Driven Urban Development Projects

Michelle Layser (Illinois; Google Scholar), Nonprofit Participation in Tax-Driven Urban Development Projects, 48 Fordham Urb. L.J. ___ (2021):

When tax incentives are designed in ways that create opportunities for nonprofits to participate in investments, a wide variety of mission-driven investments can be supported. This Essay has analyzes nonprofit participation in the New Markets Tax Credit program in order to gain insights to the barriers to nonprofit participation in Opportunity Zones investment. It has identified several barriers, including the requirement that Opportunity Funds make equity investments, the absence of monetization structures, and uncertainty about how the investments will be treated under the Community Reinvestment Act. Together, these barriers make it more difficult for nonprofits to participate in Opportunity Zone deals.

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September 8, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, September 7, 2021

Weiss: Opportunity Zones, 1031 Exchanges, And Universal Housing Vouchers

Brandon M. Weiss (American), Opportunity Zones, 1031 Exchanges, and Universal Housing Vouchers, 110 Cal. L. Rev. __ (2022):

The Tax Cuts and Jobs Act of 2017 contained former President Trump’s signature economic development initiative: the Opportunity Zone program. Allowing a deferral of capital gains tax for certain qualifying investments in low-income areas, the Opportunity Zone program aims to spur economic development by steering capital into economically distressed neighborhoods. The program is the latest iteration of an overly simplistic market-based approach to community development—an approach that transcends political party—based on a flawed yet enduring notion that mere proximity of capital will solve deeply entrenched issues of poverty and racial inequity. In reality, the legacy of Opportunity Zones is likely to be one of accelerated neighborhood gentrification left in the wake of wealthy taxpayer windfalls.

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September 7, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Lesson From The Tax Court: IRS Can Issue Multiple 'Final' Spousal Relief Determinations

Camp (2021)Yogi Berra would have been a great tax practitioner.  In Nilda E. Vera v. Commissioner, 157 T.C. No 6 (Aug. 23, 2021), Judge Buch does his best Yogi Berra imitation by teaching us that just because the IRS issued one “final determination” about an innocent spouse claim does not prevent it from issuing a second “final determination” to the same taxpayer when the taxpayer resubmits the same claim for the same year.  That means taxpayers potentially get a second opportunity to petition the Tax Court for review of an IRS rejection even when the taxpayer missed the first opportunity.  The Tax Court thus interprets the law to encourage taxpayers to keep resubmitting equitable relief claims because one never knows when the IRS might issue a second final determination, either deliberately or, as here, because of a goof-up.  As Yogi might have said: it ain't final until it's final!  So when at first your claim's denied, file, file again.  In the context of §6015(f) relief requests, that is not actually a bad result.  Details below the fold.

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September 7, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Sunday, September 5, 2021

The Top Five New Tax Papers

There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper #1 paper and some reshuffling of the order within the Top 5:

  1. SSRN Logo (2018) [374 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John A. Townsend (Houston)
  2. [338 Downloads]  Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument, by Yariv Brauner (Florida; Google Scholar)
  3. [282 Downloads]  State Aid Prohibition — The New GAAR in Town, by Joachim Englisch (Muenster)
  4. [164 Downloads]  Taxation And Law And Political Economy, by Jeremy Bearer-Friend (George Washington; Google Scholar), Ari Glogower (Ohio State; Google Scholar), Ariel Jurow Kleiman (San Diego; Google Scholar) & Clint Wallace (South Carolina, Google Scholar) (reviewed by Hayes Holderness (Richmond) here)
  5. [157 Downloads]  New Puzzles In International Tax Agreements, by Wei Cui (British Columbia; Google Scholar)

September 5, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, September 3, 2021

Weekly SSRN Tax Article Review And Roundup: Speck Reviews The Inequity Of Informal Guidance By Blank & Osofsky

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Joshua Blank (UC-Irvine; Google Scholar) and Leigh Osofsky (North Carolina; Google Scholar), The Inequity of Informal Guidance, 75 Vand. L. Rev. __ (2022).

Speck (2017)

In The Inequity of Informal Guidance, Josh Blank and Leigh Osofsky recontextualize the IRS’s use of informal guidance as a social justice issue. Adding to the substantial literature on subregulatory guidance in tax law—as well as their own deeply researched work on simplexity, automated legal guidance, and the tax legislative process—Blank and Osofsky highlight the systemic inequities and access to justice issues created by what they describe as a “two-tiered system of [tax] law.” Through agents such as tax attorneys and other advisors, certain groups benefit from planning and structuring mediated by traditional bodies of formal authorities, which offer robust protections should any controversy arise. Others are left with informal guidance: IRS publications, FAQs, and online widgets that often provide a misleading gloss of the real stuff and always give limited support in audit or litigation. To remedy this systemic inequity, Blank and Osofsky propose a slate of reforms addressing the treatment of both formal and informal law.

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September 3, 2021 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week's Virtual Tax Workshop

Thursday, September 9: Clint Wallace (South Carolina; Google Scholar) will present The Democracy Criterion for Taxation virtually at Indiana as part of its Tax Policy Colloquium Series. If you would like to attend, please contact Leandra Lederman

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September 3, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Workshops | Permalink

Benshalom: Recalibrating Moral Feasibility Boundaries Of Taxation

Ilan Benshalom (Hebrew University), Recalibrating Moral Feasibility Boundaries of Taxation, 74 Tax L. Rev. __ (2021):

Tax theorists have recognized the importance of linking policy proposals to different ideal theories of distributive justice such as equality of resources and welfarism. However, they have invested considerably less efforts in engaging the tax-distributive debate with a moral analysis that deals with non-ideal settings. This essay offers a new framework that enables more effective integration of normative considerations into the academic analysis of distributive dilemmas associated with existing tax systems.

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September 3, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, September 2, 2021

Mason & Saint-Amans: Has Cross-Border Arbitrage Met Its Match?

Ruth Mason (Virginia; Google Scholar) & Pascal Saint-Amans (OECD), Has Cross-Border Arbitrage Met Its Match?, 41 Va. Tax Rev. 1 (2021):

Virginia Tax Review (2021)In this essay, we review David Rosenbloom’s criticisms of both the concept of international tax arbitrage and regulatory responses meant to reduce such arbitrage. With the help of two decades of scholarly responses to Rosenbloom’s arguments, we conclude that although Rosenbloom’s objections to curbing arbitrage have merit, they are not so fundamental that they should stand in the way of reforms.

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September 2, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thinking Like A Source State In A Digital Economy

Yariv Brauner (Florida; Google Scholar), Thinking Like a Source State in a Digital Economy, 18 Pitt. Tax Rev. 225 (2021):

Pittsburgh Tax Review (2021)This Article proceeds as follows: Part I reviews the traditional U.S. international tax policy, followed by Part II that highlights the impact of the Tax Cuts and Jobs Creation Act of 2017 on such policy. Part III provides context to the proposals made by this Article with a discussion of the international discourse over the challenges that the digital economy presents to the international tax regime, while Part IV exposes and explains the role of the United States in this discourse.

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September 2, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Hamilton Reviews The Formation of Professional Identity: The Path From Student To Lawyer

Neil Hamilton (St. Thomas; Google Scholar), Book Review, 69 J. Legal Educ. 224 (2019) (reviewing Patrick Emery Longan (Mercer), Daisy Hurst Floyd (Mercer) & Timothy W. Floyd (Mercer), The Formation of Professional Identity: The Path from Student to Lawyer (2020)): 

Formation-of-professional-identityThe Formation of Professional Identity: The Path from Student to Lawyer provides much-needed concise and effective curriculum to address two closely related fundamental challenges for each law student and law school. The fundamental challenge for each law student is how to grow from being an aspiring entrantto-the-profession student to being a lawyer with adequate competency on the full array of capacities and skills that employers and clients want and need. The fundamental and complementary challenge for each law school—and for higher education for the professions generally—is how most effectively to foster each new student’s growth from being an aspiring-entrant student to being a licensed contributing member of the profession.

Starting more than twenty years ago, medical educators realized that emphasis on doctrinal medical knowledge and cognitive analytical skills, even when those skills are being applied in a clinical context, was insufficient to meet patient and population needs. Medical education has been moving toward more emphasis on patient-focused and teamwork centered medical care. 

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September 2, 2021 in Book Club, Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Professor Defend Thyself: The Failure Of Universities To Defend And Indemnify Their Faculty

Kevin Oates (Temple), Professor Defend Thyself: The Failure of Universities to Defend and Indemnify Their Faculty, 39 Willamette L. Rev. 1063 (2003):

University professors going about their daily activities of teaching, researching, and writing rarely consider the possibility of being sued. To the extent that the concept of potential liability does cross their minds, educational professionals undoubtedly comfort themselves in the realization that since their activities are job-related, the school that employs them is obligated to provide a defense and indemnity in any suit stemming from those activities.

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September 2, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Keep Distance Education For Law Schools: Online Education, The Pandemic, And Access To Justice

Lael Daniel Weinberger (Harvard), Keep Distance Education for Law Schools: Online Education, the Pandemic, and Access to Justice, 53 Loy. U. Chi. L.J. __ (2021):

While distance education made inroads throughout higher education, law schools kept their distance—until a global pandemic forced them all online for a time. Then the gatekeepers to the profession at the American Bar Association and state bars temporarily dropped their limits on distance learning. Now as American law schools prepare to return to normalcy, should distance learning remain an option?

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September 2, 2021 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Wednesday, September 1, 2021

Adediran: Disclosures For Equity

Atinuke Adediran (Fordham; Google Scholar), Disclosures for Equity, 122 Colum. L. Rev. __ (2021):

While one might expect that the nonprofit sector is an equitable space where generosity and social justice are the norms, the sector suffers from funding inequalities. Despite corporations’ and private foundations’ pledges to fund nonprofit organizations that are led by members of, or that serve, communities of color, there are racial disparities in nonprofit funding. Research reveals that in comparison to White-led nonprofit organizations, organizations led by or serving communities of color are chronically underfunded. These disparities in funding mean that organizations that serve communities of color are more likely to go defunct or lack resources. Increased funding for minority-led or serving organizations can have a profound positive impact on the criminal justice system, healthcare, environmental justice, housing, labor, and employment. Indeed, it would be difficult to fight mass incarceration without the work of nonprofit charities like Bryan Stevenson’s preeminent organization, Equal Justice Initiative.

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September 1, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tax Policy And COVID-19: An Argument For Targeted Crisis Relief

Assaf Harpaz (Duke), Tax Policy and COVID-19: An Argument for Targeted Crisis Relief, 31 Cornell J.L. & Pub. Pol'y __ (2021):

The COVID-19 pandemic caused a sharp global economic decline. The U.S. government responded to the downturn with record fiscal legislation totaling over $5 trillion, which includes considerable tax relief. Most notably, the U.S. government distributed over $800 billion in three rounds of advanced refundable tax credits (known as recovery rebates, or stimulus checks) to most households. Tax relief has been unprecedented in scale but has often been the product of political circumstances rather than theorized conception. Tax relief thus remains largely undertheorized and politically motivated.

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September 1, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

The Widow Tax Hit: Much Ado About Nothing?

Edward F. McQuarrie (Santa Clara; Google Scholar), The Widow Tax Hit: Much Ado About Nothing?:

The widow tax hit ranks high among the fear appeals used by financial advisors to motivate client behavior. The pitch exploits the fact that tax brackets for singles may be only half as large as for married filing joint. Cognitive errors catalogued in behavioral finance, such as the availability heuristic, explain why retired couples can be made to worry about the tax rate the widowed survivor will have to pay, leading to the fear that it may be significantly higher and require a cutback in living standards.

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September 1, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, August 31, 2021

Choi: The Price of Deference — An Empirical Study Of Mayo And Chevron

Jonathan Choi (Minnesota; Google Scholar), Legal Analysis, Policy Analysis, and the Price of Deference: An Empirical Study of Mayo and Chevron, 38 Yale J. on Reg. 818 (2021):

Yale J on Reg (2021)A huge literature contemplates the theoretical relationship between judicial deference and agency rulemaking. But relatively little empirical work has studied the actual effect of deference on how agencies draft regulations. As a result, some of the most important questions surrounding deference—whether it encourages agencies to focus on policy analysis instead of legal analysis, its relationship to procedures like notice and comment—have so far been dominated by conjecture and anecdote.

Because Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. applied simultaneously across agencies, it has been difficult to separate its specific causal effect from other contemporaneous events in the 1980s, like the rise of cost-benefit analysis and the new textualism. This Article contends with this problem by exploiting a unique event in administrative law: the Supreme Court’s 2011 decision in Mayo Foundation v. United States, which required that courts apply Chevron deference to interpretative tax regulations. By altering the deference regime applicable to one specific category of regulation, Mayo created a natural experiment with a treatment group (interpretative tax regulations) and a control group (all other regulations).

This Article uses natural language processing and various statistical methods to evaluate the causal effect of Chevron deference.

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August 31, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Choi: A Survey Of Law Professors On Tax Reform

Jonathan Choi (Minnesota; Google Scholar), A Survey of Law Professors on Tax Reform, 38 Yale J. on Reg.: Notice & Comment (Aug. 25, 2021):

As the Biden administration’s inaugural budget reaches the crucial final steps of the legislative process, a number of significant tax reforms are under consideration for the first time in years. The administration has appointed several tax law professors to help advise the effort. But what does the tax academy in general think? What Biden administration reforms do the most tax law professors support, and which reforms would professors like to see which the administration has not yet proposed? To answer these questions, I surveyed American tax law professors on their opinions of fundamental tax law reforms. ...

The survey was sent to all American tax law professors listed in the Directory of Law Teachers published by the Association of American Law Schools. 486 surveys were distributed, and 167 responses were received, giving a 34.4% response rate. The survey opened on July 7, 2021 and closed on July 16, 2021.

The format of the survey was simple: a single page with a series of potential federal tax reforms. The respondent was asked whether she supported the reforms, and for each could indicate “Yes,” “No,” or “Neutral / No Opinion.” ...

The following graph shows “Yes if Opinion” percentages, again in descending order.

Yes3-1-1024x442

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August 31, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Zelenak: The American Families Plan And The Future Of The Mass Income Tax

Lawrence Zelenak (Duke), The American Families Plan and the Future of the Mass Income Tax, 172 Tax Notes Fed. 1277 (Aug. 23, 2021):

Tax Notes Federal (2020)In this article, Zelenak argues that enactment of President Biden’s American Families Plan would threaten the status of the federal individual income tax as a tax imposed on most of the population, and he explores the fiscal citizenship implications of an income tax system under which almost all adults file tax returns but only about half pay tax.

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August 31, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Federal Tax Procedure (2021 Practitioner Edition)

John A. Townsend (Houston), Federal Tax Procedure (2021 Practitioner Ed.) (1,060 pages):

Federal Tax Procedure is a book originally prepared for a course on Tax Procedure taught by Adjunct Professor Townsend at the University of Houston School of Law (through the Fall of 2015). The book is updated annually in August. This is the 2021 edition. The book and related materials contain text discussion, relevant Code Section citations, and certain cases designed to encourage students to think about the Tax Procedure process. The book is in electronic format (Adobe Acrobat PDF format) and is in two versions: (1) a Student Edition (no footnotes); and (2) a Practitioner Edition (same as Student Edition but including footnotes). This is the Practitioner Edition. Both versions are available on Mr. Townsend's SSRN web page.

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August 31, 2021 in Book Club, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink

Monday, August 30, 2021

The 10 Most-Cited Tax Faculty

Following up on last week's post, The Most-Cited Tax Faculty At The 68 Most-Cited Law Schools:  Brian Leiter (Chicago) has updated his ranking of the Ten Most-Cited Tax Faculty to now cover the 2016-2020 period (see prior most-cited tax faculty rankings: 2000-20072005-20102009-20132010-2014, 2013-2017):

Rank Name School Citations Age
1 Reuven Avi-Yonah Michigan 420 64
2 Michael Graetz Columbia 380 77
3 David Weisbach Chicago 310 58
4 Daniel Shaviro NYU 300 64
5 Victor Fleischer UC-Irvine 270 50
  Lawrence Zelenak Duke 270 63
7 Alan Auerbach UC-Berkeley 210 70
  Joseph Bankman Stanford 210 66
9 David Gamage Indiana 200 43
10 Leandra Lederman Indiana 190 55

Leiter also lists five highly-cited scholars who work partly in tax:

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August 30, 2021 in Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink