Paul L. Caron
Dean





Monday, November 28, 2022

Satterthwaite: Understanding Self-Employment Trends In Tax Data

Emily Satterthwaite (Georgetown; Google Scholar), What's Going on With Self-Employment? (JOTWELL) (reviewing Andrew Garin (Illinois; Google Scholar), Emilie Jackson (Michigan State; Google Scholar) & Dmitri Koustas (Chicago; Google Scholar), New Gig Work or Changes in Reporting? Understanding Self-Employment Trends in Tax Data):

Jotwell (2023)Are there more self-employed people, or not? IRS data shows a significant increase in the portion of the workforce reporting positive net income from self-employment on their tax returns. It rose by about 20 percent after 2000, peaking in 2014 at just under 12 percent. However, annual labor force surveys suggest that the self-employment rate has been flat since 2000. How can these two results be reconciled? This question motivates a terrific new paper by Andrew Garin, Emilie Jackson, and Dmitri Koustas entitled, New Gig Work or Changes in Reporting? Understanding Self-Employment Trends in Tax Data. ...

The correlation between reporting more self-employment income and eligibility for larger refundable tax credits could mean either a real labor supply response (individuals actually working more in a self-employed capacity) or a pure reporting response, whether related to fake or real self-employment income.

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November 28, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Sunday, November 27, 2022

Auditing Scientology: Reexamining The Church's 501(c)(3) Tax Exemption Eligibility

Taylor C. Holley (J.D. 2022, Texas Tech), Comment, Auditing Scientology: Reexamining the Church's 501(c)(3) Tax Exemption Eligibility, 54 Tex. Tech L. Rev. 345 (2022): 

ScientologyThe Church of Scientology is one of the most discussed religions of the modern era, and its beliefs and practices have been shrouded in controversy since its emergence in the 1950’s. Shortly thereafter, the Internal Revenue Service recognized Scientology as a valid religious organization, thus granting certain governmental protections and benefits afforded to religious organizations in this country, including tax exemption. After a decades-long battle between the Church and the IRS, the IRS eventually granted a blanket tax exemption to all Scientology organizations under Section 501(c)(3) of the Internal Revenue Code.

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November 27, 2022 in Faith, Scholarship, Tax, Tax Scholarship | Permalink

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 #1 paper and a new paper debuting on the list at #4:

  1. SSRN Logo (2018) [455 Downloads]  Federal Tax Procedure (2022 Practitioner Ed.), by John Townsend (Houston)
  2. [407 Downloads]  Pillar Two and Developing Countries: The STTR and GloBE Implementation, by Heydon Wardell-Burrus (Oxford)
  3. [289 Downloads]  A Wrench in the GLOBE's Diabolical Machinery, by Ruth Mason (Virginia; Google Scholar)
  4. [247 Downloads]  Legal Structuring of Web Based Trading and Tax Complexities in Pakistan A Comparative Study, by Shan Ali (Bahria University Islamabad), Asadullah Muhmand (Bahria University Islamabad; Google Scholar) & Faheem Raza Khuhro (Boston University)
  5. [196 Downloads]  VAT Goes Virtual: Security Tokens, by Joachim Englisch (Münster)

November 27, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, November 25, 2022

Next Week’s Tax Workshops

Next Week's Tax Workshops - linkedinMonday, November 28: John Vella (Oxford) will present Pillar 2’s Impact on Tax Competition as part of the UC-Irvine Tax Policy Colloquium. If you would like to attend, please contact Natascha Ryan Fastabend.

Tuesday, November 29: Eleanor Wilking (Cornell) will present Tax Incidence with Heterogeneous Firm Evasion: Evidence from Airbnb Remittance Agreements as part of the Boston College Tax Policy Workshop. If you would like to attend, please contact Jim Repetti.

Tuesday, November 29: Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar) will these two papers as part of the NYU Tax Policy and Public Finance Colloquium:

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November 25, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

The New And Decidedly Improved IRS 'Fact Sheet' Frequently Asked Questions

Frank G. Colella (Pace), The New and Decidedly Improved IRS 'Fact Sheet' Frequently Asked Questions, 100 Taxes — The Tax Magazine 49 (Apr. 2022):

TaxesOn October 15, 2021, the IRS issued a News Release that updated its process for the issuance of frequently asked questions (FAQs) on “new tax legislation” and addressed concerns that taxpayers and practitioners had expressed about whether FAQs could be relied upon in the context of penalty relief requests. Had this News Release been issued as recently as two years ago, it may have raises some eyebrows because the number of IRS FAQs was relatively small and most practitioners were generally aware that they could not be cited as “authority” for a given tax position. But, in the post-Coronavirus world of tax practice and procedure, this News Release was a significant event given the sheer number of FAQs issued by the IRS in response to the tax legislation enacted as a result of the pandemic.

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

Wednesday, November 23, 2022

Taxation Of NFT Transactions

Michael Lukacs (EY, New York), Oren Margulies (EY, Washington, D.C.) & Lakshmi Jayanthi (EY Boston), ABCs of NFTs: Key Tax Considerations, 177 Tax Notes Fed. 819 (Nov. 7, 2022):

Tax Notes Federal (2022)In this article, the authors explain what nonfungible tokens (NFTs) are, how various parties engage in NFT transactions, and how NFTs are exploited commercially, and they answer common questions about the taxation of NFT transactions — a subject on which there is no direct guidance.

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November 23, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Delmotte: The Promises And Pitfalls Of A Blockchain Driven Tax System

Charles Delmotte (NYU; Google Scholar), The Promises and Pitfalls of a Blockchain Driven Tax System:

Policymakers and international organizations such as the OECD defend new tax measures to increase tax compliance and decrease tax competition and tax evasion. The proposed new policies often change the nature or distribution of tax liabilities, for instance by changing the rate structure, introducing new taxable events, or redistributing taxing rights. In a divided political landscape, this article suggests another approach to simplify taxes and raise compliance. This article doesn’t intend to touch upon what we owe the government, but only regards how we execute the existing set of tax rules. Moreover, I will explore enhancing tax efficiency by altering the technological design that undergirds the tax system – by relying on blockchain technology.

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November 23, 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 November 1, 2022) 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)  214,451 1 Reuven Avi-Yonah (Michigan) 11,049
2 Daniel Hemel (NYU) 127,477 2 Daniel Hemel (NYU) 5,104
3 Dan Shaviro (NYU) 125,641 3 Bridget Crawford (Pace) 4,272
4 Lily Batchelder (NYU) 125,185 4 Robert Sitkoff (Harvard) 2,920
5 David Gamage (Indiana-Bloom.) 122,450 5 Zachary Liscow (Yale) 2,761
6 Darien Shanske (UC-Davis) 115,439 6 Ruth Mason (Virginia) 2,676
7 David Kamin (NYU) 112,636 7 D. Dharmapala (Chicago) 2,618
8 Cliff Fleming (BYU)    107,287 8 Kyle Rozema (Washington University) 2,434
9 Manoj Viswanathan (UC-Hastings) 104,121 9 Richard Ainsworth (Boston Univ.) 2,411
10 Rebecca Kysar (Fordham) 103,236 10 Darien Shanske (UC-Davis) 2,405
11 Ari Glogower (Northwestern) 103,058 11 David Gamage (Indiana-Bloom.) 2,365
12 D. Dharmapala (Chicago) 48,388 12 Kim Clausing (UCLA)     2,333
13 Michael Simkovic (USC) 46,746 13 Jordan Barry (USC) 2,183
14 Paul Caron (Pepperdine) 40,043 14 Lily Batchelder (NYU) 2,112
15 Louis Kaplow (Harvard) 37,849 15 Louis Kaplow (Harvard) 2,031
16 Richard Ainsworth (Boston Univ.) 35,948 16 Michael Doran (Virginia) 1,900
17 Bridget Crawford (Pace) 33,632 17 Young Ran (Christine) Kim (Cardozo) 1,894
18 Robert Sitkoff (Harvard) 30,198 18 Dan Shaviro (NYU) 1,843
19 Vic Fleischer (UC-Irvine) 29,111 19 David Kamin (NYU) 1,812
20 Ed Kleinbard (USC) 28,834 20 Brad Borden (Brooklyn) 1,757
21 Brad Borden (Brooklyn) 28,791 21 Margaret Ryznar (Indiana-Indy)   1,703
22 Ruth Mason (Virginia) 27,572 22 Francine Lipman (UNLV) 1,624
23 Jim Hines (Michigan) 26,948 23 Edward McCaffery (USC) 1,366
24 Ted Seto (Loyola-L.A.) 25,788 24 Jeremy Bearer-Friend (George Wash.) 1,358
25 Katie Pratt (Loyola-L.A.) 25,746 25 Omri Marian (UC-Irvine) 1,347

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November 23, 2022 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink

Tuesday, November 22, 2022

Taxation And Law And Political Economy

Jeremy Bearer-Friend (George Washington; Google Scholar), Ari Glogower (Northwestern; Google Scholar), Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), & Clinton Wallace (South Carolina; Google Scholar), Taxation and Law and Political Economy, 83 Ohio St. L.J. 471 (2022) (reviewed by Hayes Holderness (Richmond) here and Neil Buchanan (George Washington) here): 

Ohio state college of lawThe Law and Political Economy (LPE) project seeks to reorient legal thought by centering considerations of power, equality, and democracy. This reorientation would supplant approaches to legal thought that prioritize efficiency and neutrality, and that imagine a pre-political market “encased” from legal scrutiny or intervention.

This Article seeks to advance dialogue between LPE and tax scholarship. The Article first describes the areas of intersection between the two literatures and then offers general insights each can learn from the other as a basis for further engagement.

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November 22, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, November 21, 2022

Morse Presents APA Challenges To Old Tax Guidance And The Six-Year Default Limitations Period Today At UC-Irvine

Susan Morse (Texas; Google Scholar) presents Out of Time? APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period at UC-Irvine today as part of its Tax Policy Colloquium:

Susan-morse  The government has begun to raise the six-year limitations period under 28 U.S.C. § 2401(a) to defend against administrative procedure challenges to old tax regulations. This defense should work. The tradeoff between accuracy and repose in these cases is solved by the six-year limitations period of 28 U.S.C. § 2401(a), which begins to run when guidance issues for such administrative procedure claims. One complication in tax is that most opportunities to raise administrative procedure claims arise in deficiency or refund cases, where the pre-litigation tax procedure can be lengthy and outside the control of the plaintiff. The solution is to make appropriate equitable, administrative and perhaps legislative adjustments to ensure that the limitations period works appropriately in the tax context.

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November 21, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Lesson From The Tax Court: The Employer/Employee Gift Rule

Camp (2021)Relationships can be messy.  That is true whether they are work relationships or romantic relationships.  But it is especially true for romantic relationships with co-workers.  Throw in a power disparity (in either direction) and the relationship becomes even trickier.  That is why I suspect most readers subscribe to the standard advice to avoid romantic relationships with co-workers—even if they honor that advice in the breach.  After all, the standard advice is often easier said than done. Humans are not little neat boxes where you can separate relationships into “work” and “personal.”  It’s messy.

That messiness invades tax law.  The Supreme Court has said as much in how it tells us to apply the §102(a) exclusion from income for gifts.  Congress has tried to lessen the §102(a) mess with a bright line rule in §102(c) that prohibits the exclusion when a gift is from employer to employee.  Call that the employer/employee gift rule.  In Jennifer Joy Fields and Walter T. Fields v. Commissioner, T.C. Sum. Op. 2022-22 (Nov. 10, 2022) (Judge Panuthos), we see the employer/employee gift rule applied to a CEO’s decision to help an employee buy a home with company money.  Despite their personal relationship, the employer/employee relationship meant there was no exclusion.

Today’s lesson seems especially timely in light of the approaching holiday season with all its messy relationship and gift-giving complexities.  Details below the fold. 

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November 21, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (9)

Sunday, November 20, 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 debuting on the list at #5. The #1 paper is #387 among 17,127 tax papers in all-time downloads:

  1. SSRN Logo (2018) [1,169 Downloads]  The Perceived (Un)Fairness of the Global Minimum Corporate Tax Rate, by Rita de la Feria (Leeds)
  2. [434 Downloads]  Federal Tax Procedure (2022 Practitioner Ed.), by John Townsend (Houston)
  3. [394 Downloads]  Pillar Two and Developing Countries: The STTR and GloBE Implementation, by Heydon Wardell-Burrus (Oxford)
  4. [283 Downloads]  A Wrench in the GLOBE's Diabolical Machinery, by Ruth Mason (Virginia; Google Scholar)
  5. [190 Downloads]  VAT Goes Virtual: Security Tokens, by Joachim Englisch (Münster)

November 20, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, November 18, 2022

Weekly SSRN Tax Article Review And Roundup: Saito Reviews Scharff And Shanske’s Local Income Taxes In The Era Of Increased Remote Work

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Erin Adele Scharff (Arizona State) & Darien Shanske (UC-Davis; Google Scholar), The Surprisingly Strong Case for Local Income Taxes in the Era of Increased Remote Work, 74 Hastings L.J. __ (2022).

Saito-blaine-800x800-1

Conventional wisdom and heuristics are often helpful, but when they are not reexamined every so often, they ossify and lead us astray. One of those adages is that U.S. local governments should never use income taxes and only rely on property taxes. But in their piece, The Surprisingly Strong Case or Local Income Taxes in the Era of Increased Remote Work, Erin Adele Scharff and Darien Shanske show that a relatively low and simple local income tax has great benefits to municipal governments.

As noted, numerous people have said that localities should not impose progressive income taxes.

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November 18, 2022 in Blaine Saito, Scholarship, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week’s Tax Workshop

Tax Workshops (Big)Monday, November 21: Susan Morse (Texas; Google Scholar) will present Out of Time? APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period as part of the UC-Irvine Tax Policy Colloquium:

The government has just begun to raise the six-year limitations period under 28 U.S.C. § 2401(a) to defend against administrative procedure challenges to old tax guidance. This defense should work. The tradeoff between accuracy and repose in these cases is solved by the six-year limitations period of 28 U.S.C. § 2401(a), which begins to run when guidance issues for such administrative procedure claims. One complication in tax is that most opportunities to raise administrative procedure claims arise in deficiency or refund cases, where the pre-litigation tax procedure can be lengthy and outside the control of the plaintiff. But the solution is not to hold the limitations period open indefinitely. That would give no weight to the value of repose. Instead, the right solution is to temper the effect of the limitations period with appropriate adjustments, including equitable tolling and estoppel and administrative practices, such as waiving the limitations period with respect to tax returns filed within six years of the issuance of challenged guidance.

If you would like to attend, please contact Natascha Ryan Fastabend

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November 18, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Hayashi Presents Tax Law Enforcement And Redistributive Politics Today At Florida

UF

Andrew Hayashi (Virginia; Google Scholar) presents Tax Law Enforcement and Redistributive Politics (with Yehonatan Givati (Hebrew University)) at Florida today as part of its Tax Colloquium hosted by Charlene Luke:

Although most Americans think that there is too much income inequality, support for redistribution through the income tax is tepid. This is a problem, because the income tax must play an important role in any serious effort to reduce income inequality, and an influential view among scholars holds that the income tax should be the only tool of redistribution. Why are people unhappy about income inequality but ambivalent about the primary legal tool for addressing it? In this Article, we explain how it is possible to hold these seemingly contradictory views and why tax law underenforcement is partly responsible for this contradiction. Underenforcement undermines taxpayer morale, increases the efficiency costs of using tax law for redistribution, and generates a distribution of tax burdens that is different than would be the case if the law were perfectly enforced. 

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November 18, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Thursday, November 17, 2022

Shanske Presents State Digital Services Taxes—A Good And Permissible Idea Today At San Diego

Darien Shanske (UC-Davis; Google Scholar) presents State Digital Services Taxes: A Good and Permissible Idea (Despite What You Might Have Heard) (with Young Ran (Christine) Kim (Cardozo; Google Scholar)) at San Diego today as part of its Tax Speaker Series hosted by Miranda Fleischer:

Darien-shanskeTax systems have been struggling to adapt to the digitalization of the economy. At the center of the struggles is taxing digital platforms, such as Google or Facebook. These immensely profitable firms have a business model that gives away "free" services, such as searching the web. The service is not really free; it is paid for by having the users watch ads and tender data. Traditional tax systems are not designed to tax such barter transactions, leaving a gap in taxation.

One response, pioneered in Europe, has been the creation of a wholly new tax to target digital platforms: The Digital Services Tax (DST). Though controversial, ten states have entertained imposing a DST, and Maryland actually did so. Maryland’s tax was immediately challenged, with the strongest argument against the tax being that it is preempted by the Internet Tax Freedom Act. There is considerable consensus that Maryland’s tax is in serious trouble and a judge in Maryland recently found it preempted and unconstitutional. 

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November 17, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars

Deborah N. Pearlstein (Cardozo), What War Did to the Academy, What the Academy Did to War: A 20-Year Retrospective on the Effects of the Post-9/11 Wars, 54 Case W. Res. J. Int'l L. 171 (2022):

The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement with the post-9/11 wars, academics’ influence on U.S. legal policy reveals an equally mixed picture. Many law professors labored to challenge government policies in defense of human rights and the rule of law, representing clients inside government and out. Others played critical roles in justifying or legitimating legally and morally suspect state behavior. But what is perhaps most striking about this record, on which this Symposium invites us to reflect, is the extent to which scholars today continue to debate which effect was which. Among the more challenging critiques levied against those who advocated government compliance with international humanitarian and human rights law has been the worry that such efforts, however well intentioned, in fact functioned to legitimate many of the most problematic U.S. policies of the era.

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November 17, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Jacob Presents How Effective Are Emission Taxes In Reducing Air Pollution? Today At The OMG Transatlantic Tax Talks

Martin Jacob (WHU–Otto Beisheim; Google Scholar) presents How Effective are Emission Taxes in Reducing Air Pollution? today as part of the  OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

JacobThis paper examines the role of environmental taxes in reducing emission output. Using unique satellite data to observe levels of nitrogen dioxide (NO2), we leverage an emission tax introduction in 2013 in the Autonomous Community Valenciana. We find that this environmental tax reduced NO2 levels by 1.8%. While the effect does not depend on the prevalence of dirty versus clean industries, we find that the NO2 burden is reduced more substantially in large industry areas, urban regions, and in areas with innovative and large firms.

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November 17, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Avi-Yonah: The Dangers Of Tax Textualism

Reuven S. Avi-Yonah (Michigan; Google Scholar), Rodriguez, Tucker, and the Dangers of Textualism:

The Supreme Court is increasingly turning toward textualism in interpreting statutes. This is part of its general hostility toward judge made law, as evidenced for example by its recent unanimous decision in Rodriguez that there should be no federal common law except in extraordinary circumstances. Textualism poses a particular danger in the tax context because the statute is so complicated and so lends itself to manipulation that courts have since the 1930s used a variety of judge-made legal doctrines to prevent such results. The classic Gregory v. Helvering case from 1935 involved just such a case: the literal application of the Code resulted in a clear departure from congressional intent and it was therefore struck down by the Court.

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November 17, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Taxonomizing Professional Identity Formation: The Soul Of Legal Education

Harmony Decosimo (Suffolk; Google Scholar), Taxonomizing Professional Identity Formation: The Soul of Legal Education, 67 St. Louis U. L.J. __ (2023):

Following the ABA’s recent mandate requiring law schools to provide students with opportunities for “professional identity formation,” this is the first article to taxonomize the field of professional identity formation advanced or employed in U.S. law schools. By organizing this muddled field into three dominant approaches and examining the primary and sometimes unspoken goals of each, this article unveils the potential pitfalls in this project, including the possibility of coercion, indoctrination, impotence, or waste. Ultimately, this article paves the way for more honest, open, and fruitful dialogue and debate as law schools strategically plan how best to engage in the professional identity formation of future lawyers.

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November 17, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Wednesday, November 16, 2022

Ring: What We Lose With Digitalization And Automation Of The Administrative State

Diane Ring (Boston College; Google Scholar), What We Lose With Digitalization and Automation of the Administrative State—And How to Get It Back (JOTWELL) (reviewing Sofia Ranchordás (University of Groningen, Faculty of Law; Google Scholar), Empathy in the Digital Administrative State, 71 Duke L.J. 1341 (2022)):

JOTWELL (2020)Government, no less than the private sector, experiences both the pressures and the allure of digital technology and automation. New technology offers the promise and possibility of delivering services more efficiently, rapidly, and maybe equitably. But there is a distinct risk that, at least for some members of society, this new future provides even less service and fairness than the analog past.

It is that risk, and how we might confront it, that drives Sofia Ranchordás’ new article, Empathy in the Digital Administrative State. Looking specifically at the administrative state and its vast systems of decision making, Ranchordás contends that not only is “empathy” crucial in maintaining democracy and ensuring a system of just and evidence-based adjudication, but that empathy is actually declining with increased digitalization. Moreover, this decline most seriously impacts society’s vulnerable citizens. In Empathy, Ranchordás outlines the challenges faced by the vulnerable engaging with a digital and automated bureaucracy, reviews the existing literature on empathy in public administration, and offers ex post and ex ante empathy-based recommendations for improving the administrative state.

What precisely is the “empathy” that Ranchordás finds missing in the operation of the administrative state? She defines it as “the ability to acknowledge, respond [to] and understand the situation of others, including their challenges and concerns.” ...

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November 16, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Zelinsky: The Commerciality Of Non-Profit Hospitals Requires Them To Be Taxed

Edward A. Zelinsky (Cardozo), The Commerciality of Non-Profit Hospitals Requires Them to Be Taxed: Bringing the Debate to a Conclusion, 42 Va. Tax Rev. __ (2022):

Virginia-tax-reviewIt is now time to conclude our prolonged debate about the tax-exempt status of nonprofit hospitals. The contemporary nonprofit hospital is a commercial enterprise, materially indistinguishable for tax purposes from its profit-making, taxed competitor. The federal income tax and the states’ income, sales and property taxes should treat all hospitals alike, regardless of whether such hospitals are nonprofit or for-profit enterprises. In the interests of equity and efficiency, these similar institutions should be taxed similarly.

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November 16, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, November 15, 2022

Maynard Presents Wage Enslavement, Racial Equity, And A Race-Neutral Tax Code Today At NYU

Goldburn Maynard, Jr. (Indiana-Kelley; Google Scholar) presents the following papers at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

Goldburn-maynardWage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans, 110 Ky. L.J. __ (2022) (with David Gamage (Indiana-Maurer; Google Scholar)): 

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.

Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code, 131 Yale L.J. F. 656 (2022): 

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November 15, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Front-Line Faculty And Systemic Burnout: Why More Faculty Should Attend To Law Students' Mental Health And The Inequities Caused By Faculty Who Opt Out

Katie Pryal (North Carolina; Google Scholar), Front-Line Faculty and Systemic Burnout: Why More Faculty Should Attend to Law Students' Mental Health and the Inequities Caused by Faculty Who Opt Out, 27 Legal Writing ___ (2023):

Law schools are facing a population shock event, which is a far-reaching traumatic event that has affected a large group of people—in our case, the pandemic. And although law students have long struggled with their mental health, depression and anxiety among law students have become a crisis, with more than eight out of ten law students having been depressed and/or anxious during the pandemic. A consequence of the pandemic population shock event is that law students are experiencing "systemic burnout," which is difficult to perceive and treat because of its prevalence in the population. This large-scale the mental health problem requires a large-scale solution: at the institutional level, law schools must address the systemic burnout our students face—and the depression and anxiety that almost inevitably follow.

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November 15, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Feld, Nielsen & Sims Present Green Or Greed? The Valuation Of Conservation Easements Today At Boston College

Alan Feld (Boston University), Jacob Nielsen (Ropes & Gray) & Theodore Sims (Boston University) present Green, or Greed? A Fresh Perspective on the Valuation of Conservation Easements, 76 Tax L. Rev. __ (2022), at Boston College today as part of its Tax Policy Collaborative hosted by Jim Repetti:

Fled-nielsen-simsCharitable contributions of "conservation easements" have since 1980 allowed high-income taxpayers to shelter income from taxation through overvalued deductions. Overvaluation has increased dramatically in the past 20 years: a 2016 study of all easement decisions since 1980 reported that while overvaluation had averaged by a factor of two before 1994, it averaged by a factor of ten for decisions between 1994 and 2016. SOI data disclose that aggregate easement contributions deducted on Schedule A grew from $2.26 billion in 2015 to $6.5 billion in 2018 (the most recent year available). A recent report by supporters of conservation easements acknowledges that "neither the [IRS] nor the courts have sufficient resources to effectively police valuation abuse."

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November 15, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Grewal: The Solicitor General Embraces Phantom Tax Regulations

Andy Grewal (Iowa), The Solicitor General Embraces Phantom Tax Regulations:

Yale Notice & CommentAs discussed in a prior post, the Sixth Circuit in Whirlpool v. Commissioner, 19 F.4th 944 (6th Cir. 2021), embraced phantom regulations. The court concluded that a statute that contemplated rules applying “under regulations” could operate regardless of whether regulations had been issued under the statute. Though in Whirlpool the Treasury had issued regulations relevant to the dispute, the court ignored them and decided the case based on its own beliefs of what the regulations should say (i.e., the court applied phantom regulations).

In June, Whirlpool filed a petition for certiorari. The Solicitor General recently filed her brief in opposition. Somewhat surprisingly, she has embraced phantom tax regulations. ...

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November 15, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, November 14, 2022

Doran Presents The Great American Retirement Fraud Today At Loyola-L.A.

Michael Doran (Virginia; Google Scholar) presents The Great American Retirement Fraud at Loyola-L.A. today as part of its Tax Policy Colloquium hosted by Theodore Seto:

Michael-doranOver the past quarter century, Congress has enacted several major reforms for retirement plans and individual retirement accounts, usually with large bipartisan, bicameral majorities. Legislators have claimed each time that the reforms would improve retirement security for millions of Americans, especially rank-and-file workers. But the supposed interest in helping lower-income and middle-income earners has been a stalking horse for the real objective of expanding tax subsidies for higher-income earners. The legislation has repeatedly raised the statutory limits on contributions and benefits, delayed the start of required distributions, and weakened statutory non-discrimination rules – all to the benefit of affluent workers and the financial-services companies and retirement-plan service providers that collect fees from retirement plans and retirement savings. 

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November 14, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Lesson From The Tax Court: An Object Lesson For Tax Professionals

Camp (2021)It is not always easy to follow the advice you give others. A common question I get is "how long should I keep my tax records?" My somewhat snarky reply is “as long as you need to.” The response is not entirely snarky because even though each tax year stands alone, events that occur in one year might have tax repercussions many, many years later.

In Betty Amos v. Commissioner, T.C. Memo. 2022-109 (Nov. 10, 2022) (Judge Urda), the taxpayer failed to keep records as long as she needed to is.  It is an object lesson for all of us. Ms. Amos was a highly successful tax practitioner, a CPA, who had decades of high-level business experience.  On her 2014 and 2015 returns she reported about $100,000 of IRA income against which she claimed over $4 million of net operating losses (NOLs) that dated back to 1999. While she could produce her 1999 tax returns showing the NOLs, she could not produce the underlying records substantiating what she had then reported, causing Judge Urda to write “It beggars belief that she would be unaware...[of] her responsibility to demonstrate her entitlement to the deductions she claimed.” Op. at 11.  Details below the fold. 

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November 14, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (7)

Call For Papers: 9th Annual Michigan Junior Scholars’ Conference

Michigan Law School has issued a Call for Papers for its 9th Annual Junior Scholars' Conference:

Michigan Law Logo (2021)The University of Michigan Law School is pleased to invite junior scholars to attend the 9th Annual Junior Scholars Conference, which will take place in person on April 21-22, 2023, in Ann Arbor, Michigan. 

The Conference provides junior scholars with a platform to present and discuss their work with peers and receive feedback from prominent members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure), who have not held an academic position for more than four years, are welcome.

Submission: To apply to the Conference, please submit an abstract of no more than 500 words reflecting the unpublished work that you wish to present and a copy of your CV through the online submission form by January 9, 2023.

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November 14, 2022 in Legal Ed Conferences, Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Sunday, November 13, 2022

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, with some reshuffling of the order within the Top 5. The #1 paper is #409 among 17,125 tax papers in all-time downloads:

  1. SSRN Logo (2018) [1,113 Downloads]  The Perceived (Un)Fairness of the Global Minimum Corporate Tax Rate, by Rita de la Feria (Leeds)
  2. [445 Downloads]  Pillar 2's Impact on Tax Competition, by John Vella (Oxford), Michael Devereux (Oxford; Google Scholar) & Heydon Wardell-Burrus (Oxford)
  3. [420 Downloads]  Federal Tax Procedure (2022 Practitioner Ed.), by John Townsend (Houston)
  4. [383 Downloads]  Pillar Two and Developing Countries: The STTR and GloBE Implementation, by Heydon Wardell-Burrus (Oxford)
  5. [271 Downloads]  A Wrench in the GLOBE's Diabolical Machinery, by Ruth Mason (Virginia; Google Scholar)

November 13, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, November 11, 2022

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Helman's Innovation Funding And The Valley Of Death

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews reviews Lital Helman (Ono Academic College) Innovation Funding and the Valley of Death, 76 SMU L. Rev. ___ (2023).

Mirit-eyal-cohenEconomic theorists have long held that innovation is the key to economic development and many positive spillovers. Alas, as a public good with high risk, non-rivalry, non-exclusive characteristics, it may suffer underinvestment and underproduction in the free private market. Accordingly, almost every legal system in the world has long incorporated an array of innovation incentives that overcome this inherent market inefficiency. Some of those stimuli mechanisms include intellectual property rights (IP), cash transfers (mostly grants and prizes), and various tax incentives. In their recent article Innovation Policy Pluralism, Daniel Hemel & Lisa Quellette discuss ways to combine, complement, and alternate between such innovation policy mechanisms based on the overall government purpose (allocation or incentive) in each case.

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November 11, 2022 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup | Permalink

Next Week’s Tax Workshops

Next Week's Tax Workshops - linkedinMonday, November 14: Michael Doran (Virginia; Google Scholar) will present The Great American Retirement Fraud as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please RSVP here.

Tuesday, November 15: Alan Feld (Boston University), Jacob Nielsen (Ropes & Gray), & Theodore Sims (Boston University) will present Green, or Greed? A Fresh Perspective on the Valuation of Conservation Easements, 76 Tax L. Rev. __ (2022), as part of the Boston College Tax Policy Collaborative. If you would like to attend, please contact Jim Repetti.

Tuesday, November 15: Goldburn Maynard (Indiana-Kelley Business School; Google Scholar) will present the following papers as part of the NYU Tax Policy and Public Finance Colloquium:

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November 11, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Thursday, November 10, 2022

Blank & Glogower: The Trouble With Targeting Tax Shelters

Joshua D. Blank (UC-Irvine; Google Scholar) & Ari D. Glogower (Northwestern; Google Scholar), The Trouble with Targeting Tax Shelters, 74 Admin. L. Rev. 69 (2022) (reviewed by Michelle Layser (San Diego; Google Scholar) here): 

Administrative-law-reviewAbusive tax shelters—complex transactions that produce tax benefits that Congress never intended, but that may resemble legitimate business deals—frequently escape IRS detection. For the past 20 years, the federal government has attempted to bolster the IRS’s ability to detect these transactions by requiring taxpayers and their advisors to disclose “reportable transactions” to the IRS Office of Tax Shelter Analysis. While mandatory disclosure rules can serve valuable tax enforcement functions, including deterrence of abusive tax planning, they are also subject to significant limitations, especially when applied against high-income and wealthy taxpayers who have access to sophisticated legal counsel. In July 2021, the U.S. Supreme Court introduced an additional potential obstacle as a result of its decision in CIC Services, LLC v. Internal Revenue Service—the reportable transaction rules may now be subject to preemptive administrative law challenges without being barred by the Anti-Injunction Act.

This Article argues that in the wake of CIC Services, policymakers should look beyond simply reforming the IRS’s process of issuing tax shelter notices to avoid potential administrative law challenges. Instead, they should reconsider more generally the government’s primary reliance on “activity-based rules” to combat abusive tax planning. This Article brings new perspective to the challenges of targeting tax shelters and explains how they result from the government’s activity-based approach.

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

Colella: Incorporation By Reference Nixed A Charitable Deduction For Art

Frank G. Colella (Pace), Incorporation by Reference Nixed a Charitable Deduction for Art, 177 Tax Notes Fed. 35 (Oct. 3, 2022):

Tax-notes-federalIn Albrecht, the Tax Court held the taxpayer failed to meet the statutory requirements to claim a charitable deduction for her donation of various Native American artifacts to the Wheelwright Museum of the American Indian. The court upheld the IRS’s determination that taxpayer had failed to satisfy the section 170 charitable contribution substantiation requirements, viz., the required content of that documentation. Although the decision did not include the dollar amount disallowed, The Wall Street Journal later reported that the value of the donated artifacts was $464,000.

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

The Case Against Tax Subsidies In Innovation Policy

Charles Delmotte (NYU; Google Scholar), The Case Against Tax Subsidies in Innovation Policy, 48 Fla. St. U. L. Rev. 285 (2022):

Florida State Law ReviewUntil recently, intellectual property (IP) scholars agreed that patents were the prime innovation tool to aggregate decentralized information. This case for the property approach, which argues patents are appropriate when information about possible inventions and the social value of inventions are hidden, is now also under pressure in the literature. IP scholars argue that tax subsidies for firms that invest in research and development (R&D) replicate many of the merits of the patent system under conditions of asymmetric information.

Based on developments in institutional economics, this Article shows that tax subsidies are not market-set incentives and are not optimal tools for aggregating decentralized information. 

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

Wednesday, November 9, 2022

Blank & Osofsky: The Inequity Of Informal Guidance

Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), The Inequity of Informal Guidance, 75 Vand. L. Rev. 1093 (2022) (reviewed by Sloan Speck (Colorado; Google Scholar) here):

The coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.

In contrast to many other legal scholars who have examined important administrative law issues regarding informal tax guidance, in this Article, we reframe the topic as a social justice issue. 

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November 9, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Cain: Taxation Of Unmarried Partners

Patricia A. Cain (Santa Clara), Taxation of Unmarried Partners, 99 Wash. U. L. Rev. 1931 (2022):

Wash U Law ReviewThe number of unmarried couples in the United States has been steadily increasing. While living together these partners often make property transfers between each other. And, when the relationship ends, either during their joint lifetimes or at the death of one partner, even more property transfers are likely to occur. Yet, there are no clear tax rules that apply to these transfers. Traditional tax rules typically characterize most of these transfers either as taxable gifts or as taxable income. This article argues that it is time to rethink those rules. Since federal tax law follows state property law to determine tax consequences of property divisions and transfers, the growing body of property law rules that apply to unmarried couples needs to be examined more closely to determine how they might affect certain tax consequences.

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November 9, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, November 8, 2022

Thomas & Scharff: Fake News And The Tax Law

Kathleen DeLaney Thomas (North Carolina; Google Scholar) & Erin Adele Scharff (Arizona State), Fake News and the Tax Law, 80 Wash. Lee. L. Rev. __ (2023):

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. However, with the rise of social media platforms, the speed at which misinformation campaigns can move to shape public opinion is far faster now. The past five years have seen a dramatic shift in the landscape of false information, and scholars in a variety of disciplines, from law to psychology to journalism, have explored the increasing influence of fake news.

Building on this burgeoning literature, this Article is the first to examine the incidence and impact of fake news on the tax law. We analyze a unique dataset of tax stories flagged as “false” or “untrue” by reputable, third-party news sources.

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November 8, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Kim Presents Tax Harmony: The Promise And Pitfalls Of The Global Minimum Tax At Oxford

Christine Kim (Cardozo; Google Scholar) presented Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, 43 Mich. J. Int'l L.  (2022) (with Reuven S. Avi-Yonah (Michigan; Google Scholar)) at Oxford yesterday as part of its International Tax Governance and Justice Series hosted by Tsilly Dagan, Ana Paula Dourado, and Cees Peters:

Yr-christine-kimThe rise of globalization has become a double-edged sword for countries seeking to implement a beneficial tax policy. On one hand, there are increased opportunities for attracting foreign capital and the benefits that increased jobs and tax revenue brings to a society. However, there is also much more tax competition among countries to attract foreign capital and investment. As tax competition has grown, effective corporate tax rates have continued to be cut, creating a “race-to-the-bottom” issue.

In 2021, 137 countries forming the OECD/G20 Inclusive Framework on BEPS passed a major milestone in reforming international tax by successfully introducing the framework of a global minimum corporate tax, known as Pillar Two. It aims to set a floor for corporate tax rates with various corrective measures so that multinational enterprises’ income will be taxed once in either source country or residence country at a substantive tax rate. 

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November 8, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Cummings: Tax Exceptionalism Is Overblown

Jasper L. Cummings, Jr., Tax Exceptionalism Overblown, 177 Tax Notes Fed. 225 (Oct. 10, 2022):

Tax Notes Federal (2022)In this article, Cummings argues that the concept of tax exceptionalism has been wildly overstated and used mostly by tax avoiders, and he contends that, unlike some good ideas, the concept isn’t worth overstating. ...

A large crop of professors, brief authors, and article writers have gleefully claimed that some amorphous malady they call “tax exceptionalism” is dead, citing Mayo’s statements about National Muffler. The claim serves as an all-purpose ground for winning most any argument with the IRS. The flaws in their scholarship might be overlooked if they weren’t so darn happy about it. They all seem delighted to assert that the IRS and Treasury were taken down a peg by the Mayo opinion, often without noticing that Mayo held for the IRS and applied Chevron deference to a Treasury regulation. So if you want to take the IRS down a peg, Mayo isn’t your best cite.

The professorial criticism of a claimed insularity of tax professionals didn’t begin with National Muffler or Mayo or even professor Kristin Hickman. It dates to at least the early 1990s, when Paul Caron penned “Tax Myopia, or Mamas Don’t Let Your Babies Grow Up to Be Tax Lawyers [13 Va. Tax Rev. 517 (1994).] ” Again, a catchy title coupled with amusing criticism of the sometimes-self-important group known as tax lawyers kicked off a season of derision for pastimes such as trying to discover the meaning of the code by reading legislative history. Caron was able to enlist professor Boris I. Bittker in his cause.

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November 8, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Monday, November 7, 2022

Stark Presents Kneecapping Prop 13 Through The Income Tax Today At San Diego

Kirk J. Stark (UCLA) presents Kneecapping Prop 13 Through The Income Tax at San Diego today as part of its Tax Speaker Series hosted by Miranda Fleischer:

Stark (2018)Under constitutional limitations on California’s local property tax introduced via Proposition 13 in June 1978, homeowners are generally taxed not on the fair market value of their homes but rather the property’s historic cost. As home prices rise over time, this “acquisition value” feature has two predictable effects: (1) it results in significant property tax disparities, favoring longtime homeowners relative to more recent purchasers, and (2) it discourages homeowners from moving because of the increased property tax burdens associated with purchasing a new home. Less widely recognized is the offsetting effect of a longstanding feature of California’s income tax: the deduction for local property taxes. By directing a larger subsidy to those with higher property taxes, this provision favors recent homebuyers facing market-value property taxes relative to longtime owners with constitutionally limited assessed valuations. It also mitigates to some degree Prop 13’s lock-in effect by reducing the effective property tax rate for those who purchase new homes.

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November 7, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Dagan Presents Unbundled Tax Sovereignty Today At Loyola-L.A.

Tsilly Dagan (Oxford; Google Scholar) presents Unbundled Tax Sovereignty: Refining the Challenges at Loyola-L.A. today as part of its Tax Policy Colloquium hosted by Theodore Seto:

Tsilly-daganTax sovereignty under globalization is at risk of unraveling. This is not only–as is often argued—because international organizations or other states exert external power on sovereign states. It is also the very process of fragmentation of state sovereignty that undermines its own foundations. The main claim of this lecture is that globalization is increasingly altering the interaction between states and their constituents. The choices and flexibility it offers (some) taxpayers threaten to transform taxpayers from equal members of a political community entitled to a bundle of public goods and services into consumers of public goods and services offered à-la-carte. Such a transition, this lecture contends, undermines the basis for states’ sovereignty. It is therefore argued that, in order to ensure the continued legitimacy of their sovereignty, states should reconfigure their social contracts with their constituents.

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November 7, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Lesson From The Tax Court: The Impact Of De Novo Review In Spousal Relief Cases

Camp (2021)I don't just inflict misery on tax students.  I also teach a class in Civil Procedure to first year law students.  One recurring lesson there concerns the different standards courts of appeals use when reviewing trial court decisions.  I want my students to learn to that the applicable standard of review matters.  It not only makes a huge difference in the outcome of the current case, but it also can make a huge difference in the precedential effect of that case on later cases.

We learn today how the different standards of review affect both outcomes and precedential value of old spousal relief cases.  We also learn how the Tax Court might be induced to finesse the bastardized administrative record rule in §6015(e)(7).  In Pia O. Bacigalupi v. Commissioner, Docket No. 20480-21 (Order of Oct. 27, 2022) (Judge Holmes), the IRS Office of Appeals decided Ms. Baciglupi should be held to the joint liability she had agreed to bear when she signed the joint returns.  They were unmoved by her present circumstances and denied her request for §6015(f) equitable relief.  Despite the record review rule, Judge Holmes allowed her to testify, and on the basis of that testimony disagreed with the IRS about two crucial factors for spousal relief.  Under an abuse of discretion review, that disagreement would not have mattered but under the de novo review, it made all the difference.  The de novo review standard also allowed Judge Holmes to ignore certain precedents unfavorable to Ms. Baciglupi.  Notice, however, this is just an unpublished bench opinion, so don’t get too excited.  For more about that, I recommend Keith Fogg’s excellent post from last week on bench opinions in general and this case in particular.  Meanwhile, you will find today's lesson in more detail below the fold. 

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November 7, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Sunday, November 6, 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 new papers debuting on the list at #1 and #5:

  1. SSRN Logo (2018) [997 Downloads]  The Perceived (Un)Fairness of the Global Minimum Corporate Tax Rate, by Rita de la Feria (Leeds)
  2. [399 Downloads]  Federal Tax Procedure (2022 Practitioner Ed.), by John Townsend (Houston)
  3. [391 Downloads]  Pillar 2's Impact on Tax Competition, by John Vella (Oxford), Michael Devereux (Oxford; Google Scholar) & Heydon Wardell-Burrus (Oxford)
  4. [341 Downloads]  Pillar Two and Developing Countries: The STTR and GloBE Implementation, by Heydon Wardell-Burrus (Oxford)
  5. [249 Downloads]  A Wrench in the GLOBE's Diabolical Machinery, by Ruth Mason (Virginia; Google Scholar)

November 6, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, November 4, 2022

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Kamin's Ambition, Limits, And Politics Of The Global Minimum Tax

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews two new works by David Kamin (NYU), Why Book Minimum Taxes? Taking Politics Seriously, 177 Tax Notes Fed. 193 (Oct. 10, 2022), and The Ambition and Limits of the Global Minimum Tax, 177 Tax Notes Fed. 385 (Oct. 17, 2022).

Kim

The two articles I introduce today were written by David Kamin, who served as Deputy Assistant and Deputy Director of the National Economic Council under President Biden until May of 2022. Kamin’s articles focus on the corporate alternative minimum tax (AMT) and are his first publications since returning to academia. On a personal note, I was thrilled to discover that Kamin chose to write on a topic that is dear to me.

 

Kamin’s first article, Why Book Minimum Taxes? Taking Politics Seriously, presents a political argument for book minimum taxes. It explains how book minimum taxes address the challenge of coordinating political actors inside the United States and around the world. The recent enactment of a new corporate AMT in the United States has generated a mixed response. Some critics argue that Congress should fix the corporate income tax system directly by limiting subsidies, raising rates and not imposing another tax base as a backstop. 

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November 4, 2022 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week’s Tax Workshops

Next Week's Tax Workshops - twitterMonday, November 7: Kirk J. Stark (UCLA) will present Kneecapping Prop 13 Through The Income Tax as part of the San Diego Tax Speaker Series

Monday, November 7: Tsilly Dagan (Oxford; Google Scholar) will present Unbundled Tax Sovereignty: Refining the Challenges as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please RSVP here.

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November 4, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Mason Presents Bibb Balancing Today At Richmond

Ruth Mason (Virginia; Google Scholar) presents Bibb Balancing, 91 Geo. Wash. L. Rev. __ (2023) (with Michael S. Knoll (Penn)), at Richmond today as part of its Emanuel Emroch Colloquy Series hosted by Allison Tait:

Ruth masonCourts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation and those of other states. We label analysis in mismatch cases “Bibb balancing,” after the famous mudflaps case, and we show that mismatch cases present the Court with a more challenging set of issues than do other types of dormant Commerce Clause cases. 

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November 4, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Buchanan Presents The Universality Of The Murphy-Nagel Approach Today At Florida

Neil Buchanan (Florida; Google Scholar) presents The Universality of the Murphy-Nagel Approach at Florida today as part of its Tax Policy Colloquium hosted by Charlene Luke:

Few academic books that have had as much immediate influence as The Myth of Ownership: Taxes and Justice (Myth), which upon publication in 2002 became a staple of syllabi across tax academia and launched important debates among scholars around the world. This was all the more impressive because neither of the authors, Liam Murphy and Thomas Nagel (MN), is a tax scholar. Yet their insights have changed the narrative in tax scholarship and beyond.

This surprising success raises a number of questions. Why is the book so important? Should it have even more impact than it has had — that is, is it possible that the scholars and policy analysts who have found it so interesting nonetheless failed to appreciate the full import of MN’s approach and arguments? Is it misunderstood? Is it perfect?

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November 4, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Thursday, November 3, 2022

Blank & Osofsky: The Inequity Of Informal Guidance

Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), The Inequity of Informal Guidance, 75 Vand. L. Rev. 1093 (2022):

The co-existence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.

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November 3, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Todd: Bitner And The FBAR’s Muddy Morass—Shining A Light With Interpretive Tools

Following up on this morning's post, WSJ: The IRS And The 8th Amendment:  Timothy M. Todd (Liberty), The FBAR’s Muddy Morass: Shining a Light With Interpretive Tools, 177 Tax Notes Fed. 179 (Oct. 10, 2022):

Tax Notes Federal (2022)In this report, Todd tackles the question of whether foreign bank account report penalties should apply per account or per form through unit-of-prosecution analysis and a survey of similar misstatement regimes.

Introduction
The Supreme Court has granted certiorari to resolve a circuit split over the proper interpretation of the Bank Secrecy Act’s penalty regime for foreign bank account report violations. The question presented is “whether a ‘violation’ under the Act is the failure to file an annual FBAR (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported.” In other words, does an FBAR violation result from each failure to report a particular foreign bank account, or does a violation result from the singular failure to file an FBAR for the year, regardless of the accounts at issue?

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November 3, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink