Paul L. Caron
Dean




Thursday, January 27, 2022

Drumbl: #Audited — Social Media And Tax Enforcement

Michelle Lyon Drumbl (Interim Dean, Washington & Lee), #Audited: Social Media and Tax Enforcement, 99 Or. L. Rev. 301 (2021):

AuditedWith limited resources and a diminished budget, it is not surprising that the Internal Revenue Service would seek new tools to maximize its enforcement efficiency. Automation and technology provide new opportunities for the IRS, and in turn, present new concerns for taxpayers. In December 2018, the IRS signaled its interest in a tool to access publicly available social media profiles of individuals in order to “expedite IRS case resolution for existing compliance cases.” This has important implications for taxpayer privacy.

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January 27, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Legal Writing Professors, Salary Disparities, And The Impossibility Of 'Improved Status'

Amy Soled (Rutgers), Legal Writing Professors, Salary Disparities, and the Impossibility of 'Improved Status', 24 J. Legal Writing 47 (2020):

There should be a concerted effort to eliminate the wage discrimination experienced by legal writing faculty. A legal writing professor’s status cannot truly improve until the pay gap that exists between those who teach legal writing and those who teach other legal topics is closed. Until law schools address the economic disparity between these two classes of professors, a legal writing professor’s status will remain mired below that of her counterparts who teach other areas of the law.

This essay first highlights the pay disparities that exist among doctrinal faculty and legal writing professors. It then demonstrates the negative effect those disparities have on the employee and the institution. Finally, it suggests ways to achieve pay parity and improve the status of legal writing professors.

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January 27, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Elkins: The Integration And Dis-Integration Of The Corporate Tax Regime

David Elkins (Netanya; Google Scholar), The Integration and Dis-Integration of the Corporate Tax Regime:

An ideal corporate tax regime would impose the same overall tax burden on income earned via a corporation as it did on income earned directly by an individual. Any discrepancy between the two violates the norms of horizontal equity, economic efficiency, and most likely vertical equity as well. Since the turn of the current century, lawmakers have responded to these concerns by gradually transforming the corporate tax regime from a “classical” or double taxation model to one that at least in very broad outline encapsulates the notion of full integration. True, the current state of affairs does not entirely eliminate the discrepancies. While closer to full integration than any corporate tax regime that the United States has until now experienced, it does contain pockets of both partial integration (in which income earned via a corporation is subject to a heavier tax burden than income earned directly by an individual) and, more rarely, of super-integration (in which income earned via a corporation is subject to a lighter tax burden than income earned directly by an individual). The goal of corporate tax reform should be to remove those incongruities and mold a more coherent overall income tax structure.

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January 27, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, January 26, 2022

Devereux Presents Business Location Decisions With A Global Minimum Tax And Pillar 2 Today At Toronto

Michael Devereux (Oxford) presents Business Location Decisions With A Global Minimum Tax (with Francois Bares (Wisconsin) & Irem Guceri (Oxford; Google Scholar)) and Pillar 2: Rule Order, Incentives, and Tax Competition (with John Vella (Oxford) & Heydon Wardell-Burrus (Oxford)) at Toronto today as part of its James Hausman Tax Law and Policy Workshop:

Devereux (2021)

Business Location Decisions With A Global Minimum Tax
In an historic agreement in 2021, 141 countries agreed on imposing a global minimum tax (GMT) on the profits of multinational corporations. Proponents of the GMT argue that the measure will reduce the distortion to businesses location decisions by reducing the dispersion in tax rates internationally. We investigate the impact of the GMT on business location and investment decisions. To do this, we develop a location choice model based on effective average tax rates (EATRs) augmented with incentives for profit-shifting to low-tax jurisdictions. GMT affects the dispersion of EATRs for new investment in different countries, but its impact is nonmonotonic in the threshold rate. For low values of the GMT threshold, the introduction of a minimum tax increases EATRs more in high-tax countries relative to low tax countries, increasing the dispersion of EATRs. As the statutory minimum rate increases, more low-tax countries begin to set their tax rate at the threshold, reducing the dispersion. An increased threshold has heterogeneous cost of capital effects for different countries; we find that a high threshold rate may substantially depress capital accumulation in investment hubs. This analysis provides a novel contribution to the literature on the relationship between taxation and corporate decisions on real activity.

Pillar 2: Rule Order, Incentives, and Tax Competition
Two of the most controversial questions relating to Pillar 2 are the extent to which it will allow countries to engage in tax competition, and which countries will collect the tax revenues it generates. The Model Rules published by the OECD/G20 Inclusive Framework on 20 December 2021 provide somewhat unexpected answers to both questions.

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January 26, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

The Cannabis Conundrum: Constitutional & Policy Concerns In Taxation Of The Marijuana Industry

Beckett Cantley (Northeastern) & Geoffrey Dietrich (Cantley Dietrich), The Cannabis Conundrum: Constitutional & Policy Concerns in Taxation of the Marijuana Industry, 10 Am. U. Legis. & Pol'y Brief 1 (2021):

The cannabis industry has greatly expanded over the last few years, with a majority of states legalizing cannabis in some form. However, despite the growing popularity of the cannabis industry and more companies entering the market, the Internal Revenue Service (“IRS”) has remained steadfast in denying business deductions for cannabis companies. Under Internal Revenue Code (“IRC”) § 280E, the IRS can disallow all ordinary and necessary business expenses by companies trafficking in illegal drugs. The disallowance of ordinary and necessary business expenses greatly hinders cannabis companies, especially for companies legally operating under state law. Several cannabis companies have also attacked the harsh effects of IRC § 280E on constitutional and public policy grounds. Despite a general shift in medical, legal, and public opinion supporting the full legalization of marijuana, legislation still lags far behind. There is currently pending legislation to address the deductions allowed for marijuana companies and reflects a shift in public policy.

One recent attack on IRC § 280E is that the provision violates the Sixteenth Amendment. Under this theory, cannabis companies argue the definition of income under the Sixteenth Amendment requires gain, and thus the disallowance of ordinary and necessary business expenses imposes a tax on more than a company’s income. For example, the Sixteenth Amendment permits a taxpayer to reduce gross receipts by cost of goods sold before a tax may be imposed. The correct method in calculating cost of goods sold also provides another point of contention between the IRS and cannabis companies. Courts continue to classify cannabis companies as “resellers” instead of “producers,” which reduces the amount that cannabis companies can deduct as cost of goods sold.

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January 26, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through January 1, 2021) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

    All-Time     Recent
1 Reuven Avi-Yonah (Michigan)  204,966 1 Reuven Avi-Yonah (Michigan) 8,299
2 Dan Shaviro (NYU) 124,235 2 Daniel Hemel (Chicago) 5,211
3 Daniel Hemel (Chicago) 123,709 3 Lily Batchelder (NYU) 4,417
4 Lily Batchelder (NYU) 123,559 4 Bridget Crawford (Pace) 4,240
5 David Gamage (Indiana-Bloom.) 120,522 5 David Kamin (NYU) 3,999
6 Darien Shanske (UC-Davis) 113,421 6 Kim Clausing (UCLA)     3,821
7 David Kamin (NYU) 111,267 7 Kyle Rozema (Washington Univ.) 3,432
8 Cliff Fleming (BYU)    106,716 8 D. Dharmapala (Chicago) 3,279
9 Manoj Viswanathan (UC-Hastings) 103,522 9 Ruth Mason (Virginia) 3,014
10 Rebecca Kysar (Fordham) 102,617 10 Richard Ainsworth (Boston Univ.) 2,693
11 Ari Glogower (Ohio State) 102,084 11 David Gamage (Indiana-Bloom.) 2,661
12 D. Dharmapala (Chicago) 46,356 12 Zachary Liscow (Yale) 2,525
13 Michael Simkovic (USC) 46,210 13 Margaret Ryznar (Indiana-Indy)   2,469
14 Paul Caron (Pepperdine) 39,029 14 Robert Sitkoff (Harvard) 2,427
15 Louis Kaplow (Harvard) 36,210 15 Darien Shanske (UC-Davis)  2,305
16 Richard Ainsworth (Boston Univ.) 33,970 16 Dan Shaviro (NYU) 2,241
17 Bridget Crawford (Pace) 30,200 17 Louis Kaplow (Harvard) 1,970
18 Ed Kleinbard (USC) 28,306 18 Francine Lipman (UNLV) 1,849
19 Vic Fleischer (UC-Irvine) 28,046 19 Brad Borden (Brooklyn) 1,831
20 Robert Sitkoff (Harvard) 27,782 20 Ari Glogower (Ohio State) 1,804
21 Brad Borden (Brooklyn) 27,355 21 Yariv Brauner (Florida) 1,735
22 Jim Hines (Michigan) 26,295 22 Hugh Ault (Boston College) 1,730
23 Ruth Mason (Virginia) 25,423 22 Gregg Polsky (Georgia) 1,586
24 Ted Seto (Loyola-L.A.) 25,321 24 Vic Fleischer (UC-Irvine) 1,456
25 Katie Pratt (Loyola-L.A.) 25,056 25 Shu-Yi Oei (Boston College)  1,381

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January 26, 2022 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink

Taxation Of The Digital Economy: Adapting A 21st-Century Tax System To A Twenty-First Century Economy

Assaf Harpaz (S.J.D. 2022, Duke), Taxation of the Digital Economy: Adapting a Twentieth-Century Tax System to a Twenty-First Century Economy, 46 Yale J. Int'l L. 58 (2021):

Yale J Intl Law (2022)This article analyzes the tax challenges of digitalization and the solutions to address them. The article argues in favor of a multilateral approach and proposes applying a new tax based on a worldwide de minimis amount. As more companies conduct business online, current international tax law and its principles have failed to adapt to global commercial practices. Digital-tech giants such as Facebook, Google and Amazon have been able to exploit the international tax framework by avoiding a physical presence in the jurisdiction of their consumers. As a result, profits of highly digitalized enterprises are often stashed in low tax countries and left untaxed in markets where substantial economic activity occurs.

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January 26, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, January 25, 2022

Mazur Presents Can Blockchain Revolutionize Tax Administration? Today At San Diego

Orly Mazur (SMU; Google Scholar) presents Can Blockchain Revolutionize Tax Administration? (reviewed by Sloan Speck (Colorado; Google Scholar) here) at San Diego today as part of its Tax Law Speaker Series hosted by Miranda Fleischer:

Mazur-OrlyExperts predict that the use of smart contracts and other applications of blockchain technology can potentially revolutionize the manner in which we do business. Blockchain promises the elimination of middlemen, as well as trust, transparency, and improved access to shared information and records. Thus, it is no surprise that companies and entrepreneurs are now developing blockchain solutions for an array of markets, ranging from real estate to health care. But, can this new technology revolutionize tax administration? Our current tax administration system suffers from a large tax gap, high compliance and administrative costs, and many inefficiencies. Blockchain’s core attributes may present a solution to these shortcomings.

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January 25, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

The Robotic Revolution: A Tax Policy Collision Course

Kathryn Kisska-Schulze (Clemson) & Rodney P. Mock (California Polytechnic State University), The Robotic Revolution: A Tax Policy Collision Course, 93 Temp. L. Rev. 301 (2021): 

Media projections depict that robotics, process automation, and artificial intelligence threaten human workforce sustainability. Two oft cited studies forecast that technological innovation could jeopardize more than one third of the U.S. workforce. Significant worker displacement would devastate federal funding that is heavily reliant on individual income tax revenue and payroll taxes. Concerns of mass joblessness have led Bill Gates and others to propose a robot tax, with some suggesting a complete reworking of the Internal Revenue Code to address looming predictions.

While these ideas are critical to the robot immersion dialogue, they are largely premised on fear and the proposition that human labor should be protected. As history supports, automation has always threatened the human workforce, which has demonstrated a great propensity for adaptation. As resisting the tractor for fear of replacing farmers’ grit would have been senseless, it is now imprudent to tax innovation for fear of automation substitution. From its inception, the U.S. Constitution has protected innovation and intellectual property. Similarly, the Internal Revenue Code serves to incentivize research and development. Taxing robots would disrupt our nation’s deeply rooted tax policies.

As a matter of astute policy, this Article advances that Congress should not impose a robot tax.

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January 25, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Cowan & Cutler: Cross-Fertilizing The Tax Classroom

Mark J. Cowan (Boise State) & Joshua Cutler (Boise State), Cross-Fertilizing the Tax Classroom, 19 U. Pitt. Tax Rev. ___ (2022):

Pittsburgh Tax Review (2021)Taxation, embedded in both the legal and accounting professions, is taught in law schools and business schools. Courses in the former develop the skills of future tax attorneys, who will engage in tax structuring, document drafting, and litigation. Courses in the latter develop the skills of future CPAs, who will engage in tax compliance. But both lawyers and CPAs do tax research, tax planning, and represent clients on audit. The skills both professionals need and the content they are taught in both schools overlap to a great extent. (Indeed, masters of taxation courses in accounting programs often use law school casebooks.) Because of the overlap, there is much that teachers in both schools can learn from one another. In this contribution, we examine ways that tax accounting teaching approaches can be used in the law school classroom and vice versa. 

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January 25, 2022 in Legal Ed Scholarship, Legal Education, Scholarship, Tax, Tax Scholarship, Teaching | Permalink

Microaggressions In The Context Of Academic Communities

Catharine P. Wells (Boston College; Google Scholar), Microaggressions in the Context of Academic Communities, 12 Seattle J. Soc. Just. 319 (2013):

In the late 1990s, I was invited to speak on a panel about the difficulties encountered by women in the legal academy. In this connection, I wrote a paper about microaggressions in which I used some of my own experiences as the basis for analysis. The frequent response to my examples was, “That can’t be true!” or “Why are you so sensitive?” Of course, neither of these reactions came from other women or men of color. But the response was telling. What seemed burdensome to me was invisible or seemingly harmless to the group of white men that dominated most law schools. In this context, the publication of Presumed Incompetent1 is an important milestone. First, it demonstrates that little has changed in the academic landscape. Second, it describes the especially vulnerable position still occupied by women of color. Third, by bundling these stories, the book makes skeptical responses less viable—we are telling the truth and we are not exceptionally sensitive.

Of course, the past few decades have brought some progress. Although the book makes it clear that the academic landscape is still littered with landmines for women of color, it is also true that the pool of tenured faculties has become less overwhelmingly white and male. This creates important opportunities for discussion and change. White women, in particular, can play a constructive role but only if we recognize that our hard won places in the establishment create the risk of blindness. Unless we remain alert, a microaggressive climate may become as invisible to us as it has been to our male colleagues.

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January 25, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Ambivalent Tax Morale Building In China

Huina Xiao (Macau; Google Scholar), Ambivalent Tax Morale Building in China, 20 China: An Int'l J. __ (2022):

This study examines the measures taken in China over the last four decades which aim to encourage taxpayer compliance through building a tax morale—fairness, equity and reciprocity—between the government and citizens. The process is referred to as ‘ambivalent tax morale building’, characterised as the state’s contradictions and conflicting aspirations in tax governance. The ambivalence is driven by the party’s goals of maintaining both party legitimacy and monopoly, as well as a lack of state capacity. 

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January 25, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, January 24, 2022

Dagan Presents Unbundled Tax Sovereignty: Refining The Challenges Today At Brooklyn

Tsilly Dagan (Oxford; Google Scholar) presents Unbundled Tax Sovereignty: Refining the Challenges at Brooklyn today as part of its Colloquium on International Economic Law hosted by Steven Dean and Julian Arato:

Tsilly_ibfdTax sovereignty under globalization is at risk of unraveling. Not only–as is often argued — because international organizations or other states exert external power on sovereign states. Instead, it is the process of fragmentation of state sovereignty that undermines its own foundations. My main claim is that globalization increasingly alters the interaction between states and their constituents. Globalization, and the choices and flexibility it offers (some) taxpayers, threatens to transform taxpayers from members in a political community into consumers of public goods and services. Such transition, I argue, undermines the basis for state's coercive power. Importantly, this transformation does not affect all individuals in the same way. It varies between taxpayers, between different stages of their lives as well as among different aspects of their lives. Hence, in reality, taxpayers' interactions with the state create a mosaic of differing shades and patterns of consumer-member combinations. This diversity has many virtues, but it also entails serious pitfalls, which is why I argue that — in order to ensure social contracts' continued legitimacy — states should re-configure their social contracts with their constituents to accommodate these trade-offs.

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January 24, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Leadership Evolution: The Rise Of Lawyers In The C-Suite

Garry Jenkins (Dean, Minnesota; Google Scholar) & Jon J. Lee (Minnesota; moving to Oklahoma), Leadership Evolution: The Rise of Lawyers in the C-Suite, 96 Tul. L. Rev. __ (2022):

Tulane Law ReviewThe traditional thinking about the path to the top corporate executive leadership posts, reaching the so-called C-suite, is that it begins with earning an MBA degree. By contrast, the JD degree is thought of as one that prepares graduates for the practice of law, for government service, or for public interest advocacy. Since lawyers have historically been trained to protect clients from risk, law is not associated with senior business leadership. Yet, an evolving and accelerating trend is emerging: more lawyers are reaching or crossing over to become part of top corporate management teams. We present findings from our empirical study on corporate leadership profiles that documents a rise in the status of and opportunities for corporate lawyer-leaders and tracks major shifts in lawyers holding senior executive posts over time, thereby challenging the conventional wisdom on corporate talent management.

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January 24, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Lesson From The Tax Court: The Qualifying Child Misnomer

Camp (2021)Like last week’s lesson, this week deals with how the Tax Code treats families as economic units and the difficulty in determining the scope of the proper family group.

Section 151 permits taxpayers a deduction for dependents.  Section 152 defines that term.  It divides the general concept of dependent into two buckets: one is labeled “Qualifying Child” (QC) and the other is labeled “Qualifying Relative” (QR).  The QC bucket is then used—more or less—to determine eligibility for the various child-rearing-related tax benefits in the Tax Code, such as the child credit, the earned income tax credit, etc.

Both labels are misnomers, but today’s lesson is about two common issues that arise with determining who is a QC.  In Carol Denise Griffin v. Commissioner, T.C. Sum. Op. 2021-26 (Aug. 16, 2021) (Judge Vasquez), we learn that a taxpayer can claim a deduction for a Qualifying Child who is not, actually, the taxpayer’s literal child.  However, in Nowran Gopi v. Commissioner, T.C. Sum. Op. 2021-41 (Dec. 2, 2021) (Judge Panuthos), we learn that a taxpayer may not do that when the Qualifying Child’s actual parent also files a tax return claiming the same QC.  Details below the fold.

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January 24, 2022 in Bryan Camp, New Cases, Scholarship, Tax | Permalink | Comments (1)

Call For Presentations: UC-Irvine Tax Symposium

Call For Presentations: UC-Irvine Tax Sympsium:

UCI Law (2022)The Graduate Tax Program at the University of California, Irvine School of Law will host its 4th Annual UCI/Lavar Taylor Tax Symposium on March 21, 2022. Due to the ongoing COVID situation, we will host the symposium virtually. The theme this year is The Global Tax Deal and the Changing International Tax Order.

The purpose of this full-day symposium is to launch an in-depth discussion on the “global tax deal” adopting the OECD two-pillar framework, signed by 136 countries last October. We are interested in submissions for proposed presentations on the ramifications of the global deal from any point of view, including, but not limited to: economic, political, legal, social, racial, as well as any critical perceptive.

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January 24, 2022 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Sunday, January 23, 2022

The Politics Of Religion And Taxation: Keeping Church And State Separate

Mary Ann Hofmann (Appalachian State; Google Scholar), The Politics of Religion and Taxation: Keeping Church and State Separate, 22 J. Mgmt. Pol'y & Prac. __ (2021):

This paper discusses tax laws and federal court decisions relating to the taxation or exemption of religious non-profit organizations. In a democracy characterized by separation of church and state, what role does the federal government play in regulating the activities and financial transactions of churches and other religious non-profit organizations? What are the federal statutory requirements regarding tax exemption for churches, tax deductibility of donations to churches, and political activity by churches, and are these requirements justified? Does this regulation interfere with the free exercise of religion, or does the federal government violate the establishment clause of the First Amendment by providing inappropriate tax benefits to churches and clergy?

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January 23, 2022 in Faith, Scholarship, Tax, Tax Scholarship | Permalink

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 a new paper joining the list at #1 and some reshuffling of the order within the Top 5:

  1. SSRN Logo (2018)[564 Downloads]  On the Evolving VAT Concept of Fixed Establishment, by Rita de la Feria (Leeds; Google Scholar)
  2. [308 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
  3. [223 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
  4. [205 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
  5. [190 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)

January 23, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, January 21, 2022

Federalizing Tax Justice

Reuven Avi-Yonah (Michigan), Orli Avi-Yonah, Nir Fishbien (S.J.D. 2019, Michigan), New York) & Haiyan Xu (University of International Business and Economics Law School), Federalizing Tax Justice, 53 Ind. L. Rev. 461 (2020):

Most large federal countries have explicit ways to reduce the economic disparities between more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign and the federal government does not distribute revenues to equalize their spending capacity. While the overall impact of the federal tax and transfer system may be to shift revenues from richer to poorer states, this is not acknowledged and to the extent it is discussed in the literature it is generally condemned as unfair to the states that send more revenues to Washington than they get back in federal transfer payments. Nor is it politically likely that the US will adopt a formal fiscal equalization mechanism.

This paper proceeds from the normative position that the increasing gap between the richer and poorer areas of the US is a problem that requires federal intervention and that the federal tax system can play a role in that intervention.

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January 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Next Week’s Tax Workshops

Next Week's Tax Workshops - twitter

Monday, January 24: Tsilly Dagan (Oxford; Google Scholar) will present Unbundled Tax Sovereignty: Refining the Challenges as part of the Brooklyn Colloquium on International Economic Law. If you would like to attend, please email Steven Dean.

Tuesday, January 25: Orly Mazur (SMU; Google Scholar) will present Can Blockchain Revolutionize Tax Administration? (reviewed by Sloan Speck (Colorado; Google Scholar)) here) as part of the San Diego Tax Law Speaker Series. If you would like to attend, please register here.

Wednesday, January 26: Michael Devereux (Oxford) will present Pillar 2: Rule Order, Incentives, and Tax Competition (with John Vella (Oxford) & Heydon Wardell-Burrus (Oxford)) and Business Location Decisions With A Global Minimum Tax (with Francois Bares (Wisconsin) & Irem Guceri (Oxford; Google Scholar) as part of the Toronto James Hausman Tax Law and Policy Workshop. If you would like to attend, please contact Robert Lines.

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January 21, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Maynard: Biden’s Gambit: Advancing Racial Equity While Relying On A Race-Neutral Tax Code

Goldburn P. Maynard Jr. (Indiana University, Kelley School of Business; Google Scholar), Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code, 131 Yale L.J. Forum 656 (2022):

Yale Law Journal (2020)The American Rescue Plan Act was both a major infusion of economic aid to low-income and middle-class Americans and an opportunity for the Biden Administration to keep its promise to promote racial equity. This Essay analyzes ARPA’s major provisions to determine their potential impact on racial equity. It argues that the Biden Administration should do more to tackle racial wealth inequality and the structural issues in the tax code that allow those at the top of the income distribution to benefit disproportionately from tax subsidies. It also underscores the larger challenge of achieving racial equity in the face of courts, particularly conservative judges, that treat race-based policies designed to counteract racial inequities as discriminatory.

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January 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Strategic Surrogates Or Sad Sinners: U.S. Taxation Of Bartering In Digital Services

Mark J. Cowan (Boise State), Joshua Cutler (Boise State) & Ryan J. Baxter (Boise State; Google Scholar), Strategic Surrogates or Sad Sinners: U.S. Taxation of Bartering in Digital Services,  58 Am. Bus. L.J. ___ (2021):

The COVID-19 pandemic caused both a surge in technology use and a deterioration in government finances. At the same time, big tech companies are under scrutiny by lawmakers for tax avoidance, antitrust issues, and other concerns. These realities call for governments to reassess tax policy towards tech companies and for tech companies to reassess legal strategy towards taxes. State and federal governments’ tax bases are eroding because of the non-cash, barter nature of modern transactions. When a taxpayer uses “free” digital services like email, social media, or search engines, she pays via access to her personal data or attention. From a legal and policy standpoint, these barter transactions should be taxed just as if cash had changed hands, but because it is not practicable to identify, value, and tax the data and time of each user, they have escaped taxation, giving many tech companies an unintended tax advantage. 

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January 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, January 20, 2022

Kofler Presents The Shielding Effect of European Tax Directives Today At The OMG Transatlantic Tax Talks

Georg Kofler (Vienna; Google Scholar) presents The Shielding Effect of European Tax Directives today as part of the OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

OMG

January 20, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Kaye: A Comparative Look At The Low-Income Housing Tax Credit And Opportunity Zones

Tracy A. Kaye (Seton Hall), Ogden Commons Case Study: A Comparative Look at the Low-Income Housing Tax Credit and Opportunity Zone Incentive Tax Programs, 48 Fordham Urb. L.J. 1067 (2021):

The Opportunity Zone (OZ) tax incentive to invest in economically distressed areas across the United States was introduced in the 2017 Tax Cuts and Jobs Act. This Article examines the Ogden Commons project, a mixed-use development in Chicago’s North Lawndale neighborhood, as a case study for OZ investments. Ogden Commons represents an appropriate implementation of the OZ incentive, but its successes also demonstrate the program’s shortfalls. For example, unlike other federal economic development programs such as the Low-Income Housing Tax Credit (LIHTC), OZ investors have few restrictions with regards to the projects they invest in. This much touted great flexibility for the OZ investments comes at the expense of little oversight.

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January 20, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Modern Diploma Privilege: A Path Rather Than A Gate

Catherine Martin Christopher (Texas Tech), Modern Diploma Privilege: A Path Rather Than a Gate:

This article proposes a modern diploma privilege, a licensure framework that allows state licensure authorities to identify what competencies are expected of first-year attorneys, then partner with law schools to assess those competencies. Freed from the format and timing of a bar exam, schools can assess a broader range of competencies over longer time horizons. This will allow the development of law school curricula aimed at preparing students to assist clients rather than to pass the bar exam. The modern diploma privilege is structured as an ongoing partnership between licensure authorities and schools, which means that changes can be easily made to the list of desired competencies and/or the assessment methods. This in turn allows for a more nimble licensure mechanism that can quickly adapt to changes in the evolving market for legal services.

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January 20, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Textualism Without Tax Shelters

Jacob D. Nielsen (J.D. & LL.M. (Tax) 2021, Boston University), Note, Textualism without Tax Shelters: A Proposal for Integrating Judicial Anti-Abuse Doctrines with Textualism, 101 B.U. L. Rev. 1471 (2021):

BU Law ReviewThe line between legitimate tax planning and abusive tax positions, while clear in many instances, produces a significant amount of controversy. Judicial scrutiny of close cases has led to the development of a body of loosely related anti-abuse doctrines designed to separate the wheat from the chaff. However, textualist judges have increasingly rejected or limited the use of anti-abuse doctrines out of a concern that such doctrines undermine taxpayer reliance on the law. Critics contend that by rejecting anti-abuse doctrines, these textualist judges legitimate abusive tax shelters and deprive the judiciary of essential tools for curbing abuse. This Note responds to textualists and their critics alike by arguing that textualism is not incompatible with judicial anti-abuse doctrines. After surveying major landmarks in the historical development of the legal system’s treatment of tax abuse and considering the Sixth Circuit’s approach to the issue, this Note develops an account of judicial anti-abuse doctrines as textually sensitive aids to statutory interpretation.

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January 20, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, January 19, 2022

Fox Presents The Psychology Of Taxing Capital Income Today At Toronto

Ed Fox (Michigan; Google Scholar) presents The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule (with Zachary Liscow (Yale; Google Scholar)) (reviewed by David Elkins (Netanya) here) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

Fox_EdHow to tax capital income is a critical issue today. The realization rule—requiring that property usually must be sold before gains are taxed—is central to taxing capital income, but often decreases the efficiency, equity, and simplicity of the tax system. Estimates suggest that the realization rule costs the government over $2 trillion over 10 years. Given these problems, it is unclear why the rule exists for assets that are easy to value and sell. Scholars have long speculated about the role of the public’s views here, but little is known empirically about them. We conduct the first survey experiment to understand the psychology of the realization rule, which has broad implications for the taxation of capital income.

We have three main findings. First, respondents strongly prefer to wait to tax gains on stocks until sale: 75% to 25%. This pattern persists across a variety of other assets and policy framings: indeed, nearly half of those without stock prefer raising everyone’s taxes (including their own) to taxing unsold stock gains. But the flip side is that there is surprisingly strong support for taxing gains on assets at sale or transfer, including at death, in areas where current law never taxes those gains.

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January 19, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Wage Enslavement: How The Tax System Holds Back Historically Disadvantaged Groups Of Americans

Goldburn Maynard Jr. (Indiana University, Kelley School of Business; Google Scholar) & David Gamage (Indiana University, Maurer School of Law; Google Scholar), Wage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans, 110 Ky. L.J. __ (2022):

Despite the importance placed on equality of opportunity within United States political culture, the existing tax system inhibits historically disadvantaged groups from building wealth or catching up with historically more privileged groups. This effectively then traps many members of historically disadvantaged groups into a continued cycle of dependence on tax-disfavored wage and salary income, a phenomenon that we metaphorically label as “wage enslavement.” This Article explains this phenomenon and then calls for reform.

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January 19, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Brown: Stereotypes, Sexism And Superhuman Faculty

Teneille R. Brown (Utah; Google Scholar), Stereotypes, Sexism and Superhuman Faculty, 16 Fla. Int'l L. Rev. __ (2021):

This symposium article explores how law professors with caretaking responsibilities struggled so greatly during the first year of the COVID-19 pandemic. Because legal academia prioritizes masculine ideals of competence over warmth, faculty were expected to suppress their emotions and mental health needs in order to maintain the appearance of competence. While students were allowed to be seen as vulnerable individuals needing accommodations, we did not extend this same compassion to our faculty colleagues. 

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January 19, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Tuesday, January 18, 2022

Layser: Financing Affordable Housing Through Opportunity Funds

Michelle D. Layser (Illinois; Google Scholar), Financing Affordable Housing Through Opportunity Funds, 19 Pitt. Tax Rev. __ (2022):

Pittsburgh Tax Review (2021)This Essay considers how the Opportunity Zones law could be amended to promote affordable housing development, and it evaluates whether policymakers should adopt such amendments. This Essay identifies several legal and practical barriers to the use of Opportunity Funds to finance affordable housing development, including through twinning with the LIHTC. These barriers include: substantial improvement rules that present barriers to affordable housing rehabilitation; basis rules that present barriers to new construction deals with low debt-to-equity ratios; strict timing rules that may not align with the realities of affordable housing construction; limits on nonqualified financial property holdings that may foreclose common affordable housing development structures; and differences in the identity and motivations of the investors who typically participate in Opportunity Zones deals versus LIHTC deals.

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January 18, 2022 in Michelle Layser, Scholarship, Tax, Tax Scholarship | Permalink

Woolhandler: Public Rights And Taxation

Following up on my previous post on Nicholas R. Parrillo (Yale), A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021):  Ann Woolhandler (Virginia; Google Scholar), Public Rights and Taxation: A Brief Response to Professor Parrillo:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared [Nondelegation at the Founding], particularly arguing that Congress itself addressed the important issues as to the 1798 tax. 

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January 18, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Lesson From The Tax Court: The Tacit Consent Rule

Camp (2021)Every marriage requires trust.  In my own marriage my DW trusts me to handle our finances.  I’m sort of the CFO of our marriage.  As part of my duties I prepare our taxes.  I try to explain them to my DW before I file, but more often than not she just waves me away with a smile, saying “I trust you.”  Back in the day when we filed paper returns I at least was able to ensure she signed the returns.  But now that we file electronically, I just make a few clicks and, boom!, it’s filed.

I have sometimes questioned whether we are really filing a joint return when it’s only me doing all the clicking for the electronic submission.  When one files electronically there is nothing analogous to an actual signature to show that both spouses have even seen, much less approved, of what is submitted.  You just need to create two 5-digit numbers, one for each spouse. Tax return preparers at least get to secure a wet signature on Form 8879 to show both spouses consented to the return preparer submitting the electronic return.  I got nothing like that.  Just a smile and a “I trust you.”

Today’s lesson answers my question.  In Om P. Soni and Anjali Soni v. Commissioner, T.C. Memo. 2021-137 (Dec. 1, 2021) (Judge Copeland), we learn that a spouse can tacitly consent to a joint return even when the spouse does not actually sign the return and even when someone else forges the spouse’s signature!  Whether there is tacit consent depends on the facts and circumstances of the filing.  And perhaps the most important factor is a history of one spouse’s trust in the other.  Details below the fold.

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January 18, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (2)

Sunday, January 16, 2022

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 joining the list at #5 and some reshuffling of the order within the Top 5:

  1. SSRN Logo (2018)[299 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
  2. [194 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
  3. [193 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
  4. [187 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)
  5. [123 Downloads]  2020 Developments in Connecticut Estate and Probate Law, by Jeffrey Cooper (Quinnipiac; Google Scholar), John Ivimey (Reid & Riege, Hartford) & Katherine Mulry (Reid & Riege, Hartford)

January 16, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, January 14, 2022

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Infanti's Tax And Time: On The Use And Misuse Of Legal Imagination

This week David Elkins (Netanya, visiting NYU 2021-2022; Google Scholar) reviews a new paper by Anthony C. Infanti (Pittsburgh; Google Scholar), Tax and Time: On the Use and Misuse of Legal Imagination (NYU Press 2022). 

InfantiTime is one of the more perplexing phenomena of the universe. Astrophysicists distinguish between what they call “real time” (time as we experience it, as a series of continuous moments moving from the past to the future) and “imaginary time” (time as viewed from outside the time-space continuum, as a unitary whole with past, present, and future existing simultaneously). However, lest we misinterpret the terms, real time is not more real than imaginary time, and imaginary time is not more imaginary than real time. The terms “real” and “imaginary” simply refer to the real and imaginary axes in Cartesian complex number coordinates. In fact, in ordinary language, it is probably more accurate to describe imaginary time as “real” (an objective portrayal of the universe) and real time as “imaginary” (our psychological perception of the flow of time). One example of the complexities that arise in this field is the conundrum of the arrow of time: Why do we remember the past, but not the future? Why do we experience time as always flowing in one direction? The arrow of time has intrigued philosophers also. Why is the knowledge that I am to experience future pleasure preferable to the knowledge that I experienced past pleasure? Why is knowledge that I am to experience future pain more disconcerting than the knowledge than I experienced pain in the past?

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January 14, 2022 in David Elkins, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week’s Tax Workshops

Next Week's Tax Workshops - twitterWednesday, January 19: Ed Fox (Michigan; Google Scholar) will present The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule (with Zachary Liscow (Yale; Google Scholar)) as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Robert Lines

Thursday, January 20: Georg Kofler (Vienna; Google Scholar) will present The Shielding Effect of EU Secondary Law as part of the OMG Transatlantic Tax Talks. This event does not require registration.

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January 14, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Realization's Vexations: Taxing Cryptocurrency Hard Forks

Arvind Sabu (Capital), Realization's Vexations: Taxing Cryptocurrency Hard Forks, 61 Jurimetrics J. 379 (2021):

A cryptocurrency hard fork seems to increase a holder’s fortunes—those who held Bitcoin, for example, nominally received an equivalent amount of Bitcoin Cash as a result of a famous hard fork. But this Article argues they should not be taxed based on the time of the fork, nor would they then be taxed under existing authorities.

Cryptocurrency hard forks represent innovative experimentation with changes to a cryptocurrency’s protocol in the rich modality of commons-based peer production—the modality responsible for Wikipedia and Linux. The tax system should not stifle this ex¬perimentation and the growth of the cryptocurrency commons by taxing hard forks based on when they occur. Relatedly, the indeterminate value of newly forked cryptocurrencies weighs against taxing hard forks based on when they occur.

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January 14, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, January 13, 2022

Sarkar: Tax Law's Migration

Shayak Sarkar (UC-Davis), Tax Law's Migration, 62 BC L. Rev. 2209 (2021):

Tax law has long left poor foreigners in precarity. Despite the Supreme Court striking down nineteenth-century state laws taxing migrants upon entry, the tax system has nonetheless determined who deserved a place, and what sort of place, within our borders. That tradition continues when the tax system’s emergency relief deprives otherwise needy noncitizens, giving migrants a lesser place.

This Article sheds light on this phenomenon—“tax law’s migration”—engaging two underappreciated connections between immigration and tax law.

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January 13, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Estate And Gift Tax Valuation Of Cannabis Business Interests

Jonathan G. Blattmachr (Milbank), Bridget J. Crawford (Pace; Google Scholar) & Mitchell M. Gans (Hofstra;), Estate and Gift Tax Valuation of Cannabis Business Interests, 2022 Tr. & Est. 22 (2022):

Approximately half of all American adults have used cannabis at some point in their lives. Whether or not any one estate planning professional falls into this particular demographic, it is crucial for all advisors understand the estate planning uncertainties and complexities facing owners of legal cannabis businesses. Eighteen states have legalized cannabis for adult recreational use; thirty-seven states have legalized the medicinal use of cannabis (often in conjunction with permitting adult recreational uses). Experts estimate that legal recreational sales in the United States were $18.9 billion in 2021 and that, by 2026, sales in the United States alone will reach $41.8 billion or more. As the legal cannabis industry expands, estate planners are more likely to have clients who own interests in legal cannabis businesses. After providing a brief introduction to the important federal banking and income tax limitations on cannabis businesses, this article turns to the more complex—and unpredictable—issue of how interests in legal cannabis businesses should be valued for estate and gift tax purposes.

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January 13, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Delgado: Groundhog Law

Richard Delgado (Alabama; Google Scholar), Groundhog Law, 21 J.L. Society 1 (2021):

Is law an academic discipline like chemistry, history, or English that belongs on a university campus? Rodrigo and the professor discuss an innocent question by a conference attender who wanted to know why legal knowledge never seems to advance. Rodrigo and the professor are struck by how legal scholarship fails to pass law-review muster unless each statement comes accompanied by a footnote reference to a past writer who said exactly the same thing. They ponder the ways this mindset resembles Gabriel Garcia Marquez's novel, One Hundred Years of Solitude, and the movie Groundhog Day.

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January 13, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

From Academic Freedom To Cancel Culture: Silencing Black Women In The Legal Academy

Renee Nicole Allen (St. John's), From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy, 68 UCLA L. Rev. 364 (2021):

In 1988, Black women law professors formed the Northeast Corridor Collective of Black Women Law Professors, a network of Black women in the legal academy. They supported one another’s scholarship, shared personal experiences of systemic gendered racism, and helped one another navigate the law school white space. A few years later, their stories were transformed into articles that appeared in a symposium edition of the Berkeley Women’s Law Journal. Since then, Black women and women of color have published articles and books about their experiences with presumed incompetence, outsider status, and silence. The story of Black women in the legal academy has been told. And, in 2021, contemporary voices resemble voices from long ago.

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January 13, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Wednesday, January 12, 2022

De Cogan Presents The Unaccountability Of Tax Devolution: A Case Study Of Business Rates Today At Toronto

Dominic De Cogan (Cambridge) presents The Unaccountability of Tax Devolution: A Case Study of Business Rates (with Penelope Tuck (University of Birmingham; Google Scholar)) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

DominicdecoganThis article was published in [2022] Public Law 38. It examines the accountability arguments for business rates devolution and shows them to be weak. They are undermined by the economic incoherence of the tax, the complexity of devolved powers and a lack of transparency around the use of powers. These problems resonate with a widely held belief that business rates ought to be repealed and replaced with a more carefully designed tax, especially in response to the pressures placed on the system by COVID-19. We are not hostile to these ideas but doubt the likelihood of rapid implementation, and therefore focus on the existing system, paying special regard to the COVID reliefs of 2020 and 2021. We suggest incremental improvements that could reinforce the accountability justifications for devolution; these might be useful even in the event that radical reforms are enacted.

A key justification for tax devolution is that it enhances sub-central accountability.  The meaning of ‘accountability’ in this context is not always clear, but it seems to embody two linked claims. 

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January 12, 2022 in Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Burke: Transfers Of Zero-Basis Intangibles To A Partnership

Karen C. Burke (Florida), Transfers of Zero-Basis Intangibles to a Partnership, 174 Tax Notes Fed. 25 (Jan. 3, 2022):

Tax Notes Federal (2020)In this report, Burke examines the problem of contributed zero-basis intangibles in light of the IRS’s inadvertent disclosure of a transaction structured by Bristol-Myers Squibb to shift billions of dollars of built-in gain to a related foreign partner.

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January 12, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Clinical Fellowships, Faculty Hiring, And Community Values

G.S. Hans (Vanderbilt), Clinical Fellowships, Faculty Hiring, and Community Values, 27 Clinical L. Rev. 253 (2021):

This Essay explores clinical hiring practices as an expression of community values. In particular, it discusses how lawyers become clinical faculty to reflect on whether and how prior clinical teaching experience should be assessed for entry-level clinical applicants in order to effectuate equity and inclusion within law schools and the clinical community. Publicly available data suggest that a majority of recent entry-level clinical faculty have prior clinical teaching experience as fellows or staff attorneys. What does this apparent hiring pref- erence for prior teaching experience mean for the composition of the clinical community, especially with respect to equity and inclusion? 

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January 12, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Learning Outcomes In A Flipped Law School Classroom

Katharine Traylor Schaffzin (Dean, Memphis; Google Scholar), Learning Outcomes in a Flipped Classroom: A Comparison of Civil Procedure II Test Scores Between Students in a Traditional Class & a Flipped Class, 46 U. Mem. L. Rev. 661 (2016):

By now, many legal educators have heard of a “flipped classroom,” even if they may not be familiar with its meaning. The odds are great that more and more law students have experienced a flipped classroom in high school, college, or even in law school, although they may be unfamiliar with the pedagogical term. After learning about how the flipped classroom is being adapted for the law school course, I became convinced that such an approach to teaching could benefit my students’ learning outcomes.

In January 2014, I decided to adapt my own Civil Procedure II materials to this new format. Unbeknownst to my students, I tracked the performance of this class to compare it to that of my Civil Procedure II class from the preceding year. Assigning the same readings from the same texts in both 2013 and 2014, I changed only the mode in which I delivered the material to my students. Information I had previously presented to my class in 2013 in the form of a lecture interspersed with Socratic dialogue I now provided to the 2014 class online in advance of class and indefinitely thereafter in the form of PowerPoint slides with my lecture interposed as voiceover. 

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January 12, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Tuesday, January 11, 2022

Appleby: Subnational Digital Services Taxation

Andrew D. Appleby (Stetson; Google Scholar), Subnational Digital Services Taxation, 81 Md. L. Rev. 1 (2021):

Existing tax regimes fail to tax digital services appropriately. Digital services based on extracting and monetizing user data—most notably digital advertising—are particularly problematic because tax regimes do not adequately account for the enormous value derived from user data.

Internationally, taxing jurisdictions have recognized these failures and commenced a controversial push toward new digital services taxes or DSTs. Subnational taxing jurisdictions in the United States face the same issues and are searching for solutions.

This Article begins by examining the motivations and justifications for digital service taxation at both the international and subnational levels. These justifications center on antiquated tax regimes that do not sufficiently capture profit from new business models, particularly business models that rely on valuable data extracted from users in the taxing jurisdiction.

 

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January 11, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Appleby: Designing The Tax Supermajority Requirement

Andrew D. Appleby (Stetson; Google Scholar), Designing the Tax Supermajority Requirement, 71 Syracuse L. Rev. 959 (2021):

States are rekindling the trend of broad constitutional amendments that require supermajority approval to create or increase taxes. This trend may inadvertently harm states’ already precarious fiscal footing, particularly with several new imminent expenditure demands. States can minimize negative economic consequences, however, through proper supermajority requirement design.

This Article makes three contributions. First, it examines broad constitutional tax supermajority requirements’ history, asserted justifications, and effectiveness. This examination concludes that the motivations underlying the first and second supermajority waves differ importantly from those underlying the possible third wave. Recognizing this novel motivation—signaling low-tax competitive advantage—allows this Article to present optimal supermajority provision design principles.

Second, this Article investigates several new sources that can generate immense tax revenue for states, but that will likely be obstructed by tax supermajority provisions if not designed properly. This Article also identifies several expenditure demands that are unlikely to be satisfied without new or increased taxes.

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January 11, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, January 10, 2022

Dooling & Hickman: A Study To Evaluate OIRA Review Of Tax Regulations

Bridget C.E. Dooling (George Washington Regulatory Studies Center; Google Scholar) & Kristin E. Hickman (Minnesota; Google Scholar), A Study To Evaluate OIRA Review of Treasury Regulations:

Yale Notice & CommentFor most federal agencies, centralized review by Office of Information and Regulatory Affairs (OIRA) and regulatory impact analysis have been a routine part of the regulatory process for more than 40 years. Not so in the tax context. When OIRA was in its infancy, OIRA Administrator Christopher DeMuth and Treasury Department General Counsel Peter Wallison signed a memorandum of agreement that exempted most Treasury and IRS tax regulations from OIRA review. More than a decade later, that memorandum of agreement was ratified by OIRA Administrator Sally Katzen and Treasury Department General Counsel Jean Hanson. Katzen has indicated since then that her understanding was that the exempted rules were minor and technical rather than sweeping and substantive. As a result of these agreements, however, very few Treasury regulations were ever submitted for OIRA review.

That changed in April 2018, when OIRA Administrator Neomi Rao and Treasury Department General Counsel Brent McIntosh signed a new memorandum of agreement (MOA) that would pull more Treasury and IRS tax regulations in for OIRA review. ...

Now that the MOA is almost four years old, ... [we] investigate how OIRA review has influenced the content of Treasury regulations implementing and interpreting the tax laws. ...

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January 10, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

The 10 Most Downloaded Tax Articles Of 2021

  1. SSRN Logo (2018)2,352 Downloads:  Lily Batchelder (NYU) & David Kamin (NYU), Taxing the Rich: Issues and Options
  2. 2,275 Downloads:  Edward McCaffery (USC), The Death of the Income Tax (or, the Rise of America's Universal Wage Tax)
  3. 1,491 Downloads:  Hugh Ault (Boston College), Some Reflections on the OECD and the Sources of International Tax Principles
  4. 996 Downloads:  Kimberly Clausing (UCLA), Emmanuel Saez (UC-Berkeley) & Gabriel Zucman (UC-Berkeley), Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals
  5. 928 Downloads:  Michael Devereux (Oxford) & John Vella (Oxford), Are We Heading Towards a Corporate Tax System Fit for the 21st Century? (2014)
  6. 897 Downloads:  Kimberly Clausing (UCLA), Profit Shifting Before and After the Tax Cuts and Jobs Act
  7. 871 Downloads:  Michelle Hanlon (MIT) & Shane Heitzman (Rochester), A Review of Tax Research
  8. 787 Downloads:  Steven Dean (Brooklyn) & Attiya Waris (Nairobi), Ten Truths About Tax Havens: Inclusion and the ‘Liberia’ Problem

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January 10, 2022 in Legal Education, Scholarship, Tax, Tax Scholarship | Permalink

Sunday, January 9, 2022

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 a new #1 paper and new papers joining the list at #1 and #4:

  1. SSRN Logo (2018)[280 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
  2. [188 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
  3. [183 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)
  4. [166 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
  5. [88 Downloads]  Whose Child Is This? Improving Child-Claiming Rules in Safety Net Programs, by Jacob Goldin (Stanford; Google Scholar) & Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar)

January 9, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, January 8, 2022

Third-Party Sexual Harassment: The Challenge Of Title IX Obligations For Law School Clinics

Ty Alper (UC-Berkeley), Third-Party Sexual Harassment: The Challenge of Title IX Obligations for Law School Clinics, 96 Wash. L. Rev. 1 (2021):

Washington Law ReviewLaw faculty who teach and train students in clinical settings regularly expose students to the potential for sexual harassment. Because clinics involve actual cases in real-world contexts, students may encounter sexual harassment from third parties such as clients, witnesses, and judges. Do faculty who tolerate this exposure run afoul of their obligations under Title IX to stop and remedy sexual harassment about which they are, or should be, aware?

This Article is the first to identify and propose a method for addressing a phenomenon that strikes at the intersection of three sets of priorities for clinical faculty: duty to serve the client, duty to educate the student, and duty to protect the student. When a law student may face sexual harassment from a third party in the course of representing a client, the values underlying those priorities are in tension and admit no obvious solution; some remedies that Title IX arguably requires are, in many cases, impossible to square with the duties of loyalty and zealousness owed to a clinical client, not to mention the educational goals of the clinic.

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January 8, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink