TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, May 24, 2019

Columbia Hosts Tax Workshop

Columbia (2017)Columbia Tax Workshop:

Brian Galle (Georgetown, Law), The Tax Exemption for Charitable Property: An Empirical Assessment
Discussant: François Gérard (Columbia, Economics)

Yehonatan Givati (Hebrew University, Law), Theories of Tax Deductions: Income Measurement Versus Efficiency
Discussant: Michael Doran (Virginia, Law)

Rebecca Kysar (Fordham, Law), Unraveling the Tax Treaty
Discussant: Mirit Eyal-Cohen (Alabama, Law)

Zach Liscow (Yale, Law), Toward Democratic Law and Economics: Moral Commitments & Inequality
Discussant: Jake Brooks (Georgetown, Law)

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May 24, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Lederman Presents The Fraud Triangle And Tax Evasion Today At The University Of Lisbon

Lederman (2018)Leandra Lederman (Indiana) presents The Fraud Triangle and Tax Evasion today at the University of Lisbon:

The “fraud triangle” is the preeminent framework for analyzing fraud in the accounting literature. It is a theory of why some people commit fraud, developed out of studies of individuals, including inmates convicted of criminal trust violations. The three components of the fraud triangle are generally considered to be (1) an incentive or pressure (usually financial), (2) opportunity, and (3) rationalization. There is a separate, extensive legal literature on tax compliance and evasion. Yet the fraud triangle is largely absent from this legal literature, although tax evasion is a type of fraud. This article rectifies that oversight, analyzing how the fraud triangle—and its expanded version, the “fraud diamond”—can inform the legal literature on tax compliance. The article argues that the fraud triangle can provide a frame that brings together distinct tax compliance theories discussed in the legal literature, the traditional economic (deterrence) model and behavioral theories focusing on such things as social norms or tax morale.

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May 24, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Thursday, May 23, 2019

IDC Herzliya Hosts Conference Today On Taxation And Globalization

IDC Logo (2019)IDC Herzliya Harry Radzyner Law School hosts the Atara Kaufman Annual Conference on Law and Globalization today on Taxation and Globalization:  A Research Workshop:

Session I: International Tax Competition
Chair: Rifat Azam (IDC Herzliya)
Reuven Avi Yonah (Michigan), Globalization, Tax Competition and the Fiscal Crisis of the Welfare State: A Twentieth Anniversary Retrospective
Tsilly Dagan (Bar Ilan), International Tax Policy: Between Competition and Cooperation

Session II: Taxation of Multinationals
Chair: David Elkins (Netanya)
Joseph Bankman (Stanford), Collecting the Rent: The Global Battle to Capture MNE Profits, 72 Tax L. Rev. ___ (2019) (with Mitchell Kane (NYU) & Alan Sykes (Stanford)) (reviewed by David Elkins (Netanya) here)
Yoram Margalioth (Tel Aviv), Global Collective Action

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May 23, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Wednesday, May 22, 2019

Tax Papers At Today's Junior Faculty Forum At Richmond

Richmond (2018)Tax presentations at today's Junior Faculty Forum at Richmond:

Hayes Holderness (Richmond), Legislative Evasion through Tax:

Approximately 20 states impose specific excise taxes on the possession or sale of controlled substances (i.e., illegal drugs). Often these taxes take the form of stamp taxes, requiring the taxpayer to purchase and affix stamps to the controlled substances in his or her possession. These taxes are rarely, if ever, enforced or complied with before the taxpayer is charged in the criminal justice system for the possession of the controlled substance. Once a taxpayer is brought into the criminal justice system, the state taxing authority is alerted and an assessment for the controlled substance tax is issued.

Courts and commentators have addressed the major criminal law issues associated with the taxes—namely concerns about double jeopardy and self-incrimination. From a tax perspective, the taxes might not appear particularly problematic; they merely function as Pigouvian taxes on the possession or sale of controlled substances. However, because these taxes are imposed on activities already sanctioned through another area of law and because enforcement of the taxes relies on non-tax actors, concerns arise about the incidence and administration of the taxes. These concerns call in to question the effectiveness of controlled substances taxes and suggest that the taxes serve as low-salience vehicles for legislators to achieve non-tax policy results.

Daniel Schaffa (Richmond), Valuable Realizations (with James R. Hines Jr. (Michigan)):

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May 22, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

University Of Luxembourg Hosts Seminar Today On International Tax Developments: Cross-Atlantic Perspectives

LuxThe University of Luxembourg hosts a seminar today on International Tax Developments: Cross-Atlantic Perspectives:

  • Yariv Brauner (Florida), The Digital Tax Future in the U.S. and the EU
  • Leandra Lederman (Indiana), Tax Rulings and Transparency: "Taxpayers sometimes seek advance tax rulings to obtain certainty regarding the tax treatment of planned transactions. The transparency of these rulings, including Advance Pricing Agreements regarding intra-company transfer pricing, has changed significantly in the past several years. One of the triggers for change was the 2014 “LuxLeaks” scandal, revealing what the press sometimes termed “secret tax deals” between the Luxembourg tax authority and multinational companies. Since then, legal changes require tax authorities to share cross-border advance rulings with other countries’ tax authorities. In addition, Luxembourg has formalized and modified its rulings practice. This paper examines what these legal changes have meant for Luxembourg and the United States, and whether the current level of rulings transparency is appropriate and sufficient."

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May 22, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Call For Papers: National Tax Association

NTA TampaDear tax colleagues,

You are invited to submit a paper, extended abstract, or complete session to the National Tax Association annual conference, which will be held in Tampa, November 21-23, 2019.  NTA has extended the submission deadline to June 8.

The official NTA call for papers is copied below.  This year, law professors will submit to specific subject areas, instead of submitting to a general “Law/Practitioner” area.  The subject areas include: (1) Accounting; (2) Administration and Compliance; (3) Corporate Tax; (4) Developing World; (5) International Tax; (6) Behavioral Public Finance; (7) Charity/Public Goods; (8) Environmental/ Energy; (9) Education; (10) Health; (11) Personal Tax/Labor; (12) Macro and Fiscal Policy; (13) Political Economy; (14) Retirement/SSA; (15) State/Local Public Finance; and (16) Transfers/Welfare State. 

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May 22, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Tuesday, May 21, 2019

Field: Tax Lawyers As Tax Insurance

Heather M. Field (UC-Hastings), Tax Lawyers as Tax Insurance, 60 Wm. & Mary L. Rev. ___ (2019):

Transactional tax lawyers, by rendering tax opinions, provide a version of insurance to clients. This insurance is clearly incomplete, but by providing a tax opinion, a lawyer conditionally agrees to indemnify the client for at least part of the potential loss the client incurs if the favorable tax treatment described in the opinion is successfully challenged. Although insurance is not the primary function of transactional tax lawyers, and although this Article does not argue that tax opinions should be regulated as insurance, indemnification — a key element of insurance — is an important part of the economic relationship between a client and a lawyer who provides a tax opinion. Surprisingly, this insurance-like function has been largely overlooked in the literature. Thus, by identifying and exploring the insurance-like aspect of the transactional tax lawyer’s role, this Article fills a gap in the literature and offers a new framework for understanding the value of tax lawyers.

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May 21, 2019 in Scholarship, Tax | Permalink | Comments (1)

AALS Tax Section Call For Papers: New Voices In Tax Law & Policy

AALS (2018)The AALS Section on Taxation is pleased to announce the following Call for Papers. Selected papers will be presented at a works-in-progress session at the 2020 AALS Annual Meeting in Washington, D.C. The works-in-progress session is tentatively scheduled for Friday, January 3, 2020. This program will provide speakers the opportunity to present their work and receive feedback from commentators in the field.

Eligibility: Scholars teaching at AALS member schools or non-member fee-paid schools with seven or fewer years of full-time teaching experience as of the submission deadline are eligible to submit papers. For co-authored papers, all authors must satisfy the eligibility criteria.

Due date: 5 p.m. PDT, Thursday, August 15, 2019.

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May 21, 2019 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Making Only America Great? Non-U.S. Market Reactions To U.S. Tax Reform

Fabio B. Gaertner (Wisconsin), Jeffrey L. Hoopes (North Carolina) & Area Braden Williams (Texas), Making Only America Great? Non-U.S. Market Reactions to U.S. Tax Reform:

We examine U.S. tax reform’s effect on foreign firms’ stock returns. Examining key tax reform events, we find little average foreign firm market reaction to tax reform. However, this average effect masks great heterogeneity by country, industry, and firm. Chinese firms experience large negative returns, especially steel manufacturers, while the rest of the world experiences positive returns. Firms in industries that export to the U.S. and firms in financial distress also experience larger negative returns. Overall, our results suggest that U.S. tax reform had varied, yet systematic effects on foreign firms’ shareholders’ wealth and the global competitive landscape.

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May 21, 2019 in Scholarship, Tax | Permalink | Comments (0)

Monday, May 20, 2019

Satterthwaite: Rewarding Honest Taxpayers — An Experimental Assessment

Florida Tax Review (2018)Emily Satterthwaite (Toronto), Rewarding Honest Taxpayers: An Experimental Assessment, 22 Fla. Tax Rev. 200 (2019):

Shrinking budgetary allocations for tax enforcement at the U.S. federal level have placed an unprecedented premium on low-cost policies that promote voluntary tax compliance. In other jurisdictions, tax administrators have experimented with rewarding taxpayers for voluntarily complying with tax laws, but there has been an absence of reward-focused policy experimentation in the United States. To explore the efficacy of rewards among U.S. taxpayer populations, a multi-period online tax reporting experiment was conducted featuring a simple reward intervention: a token monetary amount pre-announced and provided to participants who were audited and found to have fully complied. The reward failed to increase average post-audit compliance levels as compared to the no-reward control condition, regardless of whether random audits or non-random (i.e., conditional on past detected evasion) audits were used. However, the reward treatment condition in combination with random audits was strikingly effective with respect to an alternative measure of tax compliance: “consistent compliance,” or the outcome in which a participant voluntarily reports all of her income in each and every period of the experiment.

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May 20, 2019 in Scholarship, Tax | Permalink | Comments (0)

Lesson From The Tax Court: Mostly Dead Corporation Cannot File Petition

Tax Court (2017)As we learned from this scene in The Princess Bride, there’s dead...and then there’s mostly dead. 

In Timbron Holdings Corporation v. Commissioner, T.C. Memo. 2019-31 (April 8, 2019) (Judge Vasquez), the Tax Court decided that it could not hear the petition filed by a mostly dead corporation.  In reaching this conclusion, Judge Vasquez carefully followed existing Tax Court precedents to hold: (1) a corporation whose charter is suspended under California law (i.e. is mostly dead) has no capacity to file a Tax Court petition; (2) the corporation’s lack of capacity is not a defense that the government must raise but is instead an element of §6213’s jurisdictional requirements; and (3) “reliance on equity and policy considerations [cannot] overcome a jurisdictional defect.”

The idea that §6213 is a jurisdictional statute is an old idea.  Really old.  Decrepitly old.  If the right right case goes up on appeal, I think an appellate court will likely decide that old idea is dead.  Deceased.  Kaput.  Expired.  Gone.  Done in.  All-the-way dead.  Parrot dead.  To beat the dead horse, an appellate court is likely to find that §6213 is not a jurisdictional restriction on the Tax Court but is instead a “claims processing rule,” a term the Supreme Court uses to describe limitations that are important but not jurisdictional.  You can find the deathly dull details in my forthcoming article (Fall 2019 issue of The Tax Lawyer).

Timbron is not the right case to take on appeal.  I think the result would be the same even if §6213 were treated as a straight-forward non-jurisdictional limitations period.  But, either way, the result creates a curious contradiction in the Tax Court Rules.  Details below the fold.

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May 20, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure | Permalink | Comments (1)

Sunday, May 19, 2019

Fifth Annual Texas Tax Faculty Workshop At Houston

Houston (2017)The University of Houston Law Center hosted the Fifth Annual Texas Tax Faculty Workshop (program) on Friday:

Johnny Buckles (Houston), Curbing (or not) Foreign Influence on United States Politics and Policies through the Federal Taxation of Charities
Commentator: Terri Helge (Texas A&M)

Cal Johnson (Texas), Pay Back of the 2017 Act — Deficits by Wealth
Commentator: Bret Wells (Houston)

Bryan Camp (Texas Tech), Taxation of Electronic Gaming
Commentator: Bruce McGovern (South Texas)

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May 19, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

The Top Five New Tax Papers

SSRN Logo (2018)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:

  1. [430 Downloads]  Taxing the Digital Economy Post BEPS ... Seriously, by Andrés Báez (Universidad Carlos III de Madrid) & Yariv Brauner (Florida)
  2. [398 Downloads]  Residual Profit Allocation by Income, by Michael Devereux (Oxford), Alan Auerbach (UC-Berkeley), Michael Keen (IMF), Paul Oosterhuis (Skadden), Wolfgang Schön (Max Planck) & John Vella (Oxford) (reviewed by Christine Kim (Utah) here)
  3. [170 Downloads]  Fixing Philanthropy: A Vision for Charitable Giving and Reform, by Roger Colinvaux (Catholic)
  4. [117 Downloads]  Critical Tax Thinking, by Edward Kleinbard (USC)
  5. [112 Downloads]  The Digital Services Tax as a Tax on Location-Specific Rent, by Wei Cui (British Columbia) & Nigar Hashimzade (Durham University) reviewed by Kim Brooks (Schulich School of Law, Dalhousie University) here)

May 19, 2019 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, May 18, 2019

Tokic: Taxing Greed

Genevieve Tokic (Northern Illinois), Taxing Greed, 50 Loy. L.A. L. Rev. 607 (2017):

Appeals to greed in support of various tax proposals are often seen in response to populist moods in politics. Such appeals may be used to garner political support for a policy or proposal. However, there has been little academic consideration of the role of greed (or attitudes towards greed) in the law, and in tax law in particular. This Article seeks to fill that gap by taking a close look at the concept of greed. In doing so, the Article first surveys the history of greed and its meaning, and draws on political philosophy and economic literature to provide a working definition of greed. The Article then investigates the role of greed in tax law, focusing on the issue of executive compensation, in order to consider whether “greed” is merely political rhetoric, or if it can provide a framework or analytical tool that is useful for crafting tax rules aimed at correcting or remedying excess. The Article ultimately concludes that, while “greed” is indeed a powerful rhetorical tool, its application in tax law and policy should be limited to situations where greed manifests as the appropriation of money, wealth or goods for personal gain, accompanied by illegality, a breach of fiduciary duty or contract, or indicators of market failure or manipulation. In such scenarios, carefully considering the meaning of greed and thinking about our reactions to it in crafting tax law and policy may help tailor rules to target the negative aspects of the behavior in question.

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May 18, 2019 in Scholarship, Tax | Permalink | Comments (0)

Friday, May 17, 2019

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Cui's The Digital Services Tax: A Conceptual Defense

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Wei Cui (UBC), The Digital Services Tax: A Conceptual Defense (April 2019).

KimThere are already multiple versions of a real digital services tax (DST) that have been implemented or proposed in multiple countries. France released a bill introducing a DST retroactively to January 1, 2019, UK will introduce a DST in April 2020, and other European countries, such as Spain, Austria, and Italy, are discussing or have proposed a bill mimicking the March 2018 DST proposal from the European Council. While details of the proposed DSTs vary, in general, a DST is a 2-3% tax imposed on the gross revenues of specific digital business models where revenues are linked to the participation of users in the country exercising such taxing right. It also establishes a specified revenue threshold which triggers the DST. The goal of the DST is to capture profits earned by multinationals that reflect value contributed by users of such digital business.  

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May 17, 2019 in Christine Kim, Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Estate Planning Considerations For Sports Team Owners

Duncan Ternus (J.D. 2020, Texas Tech), Winning Starts at the Top: Estate Planning Considerations for the Modern Day Sports Team Owner:

Professional sports team owners need to carefully plan their estates in order to win on and off the field. These individuals are arguably the most important figures in a professional sports team because their actions affect everyone associated with the team, from players to fans. Team owners represent some of the wealthiest people in America and have large estates that often include other business ventures besides their sports teams. When team owners take inadequate estate planning steps, their estates are often forced to sell their teams in order to pay estate taxes. This in turn can lead to team instability or, worst case scenario from a fan’s perspective, a forced relocation of the team.

This comment examines some of the ways today’s professional sports team owners can plan their estates in order to not only continue their personal success but their team’s success as well. Federal estate taxes are the largest hurdle for team owners because the tax affects only the wealthiest of estates, and planning one’s estate to avoid these estate taxes is vital for a team owners’ success. The future of the federal estate tax remains to be seen under the Trump administration, which could lead to substantial gain for team owners should the tax be repealed altogether. Team owners also need to consider state estate taxes for the states in which they are domiciled.

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May 17, 2019 in Scholarship, Tax | Permalink | Comments (1)

Thursday, May 16, 2019

Shurtz: Long Term Care And the Tax Code: A Feminist Perspective On Elder Care

Nancy E, Shurtz (Temple), Long-term Care and the Tax Code: A Feminist Perspective on Elder Care, 20 Geo. J. Gender & L. 107 (2018):

Elder care is an increasingly important sector in the comprehensive health care matrix in the United States. It is a realm of particular import to women: women live longer, develop degenerative conditions at higher rates than men, and are more likely to receive and provide care. Women earn less income, possess less net wealth, and are far more likely to live in poverty. Public policies regarding elder care add to the increasing strain on women by systematically rejecting home-based caregiving labor as “legitimate” economic activity, rendering it unworthy of subsidized support. As a result, a secondary policy bias develops, favoring institutional (market) elder care over home-based options, which creates demonstrably poor health and life-quality results and adds substantial monetary costs to both affected individuals and taxpayers. This Article examines the state of elder care—especially in the long-term context—and its impact on the lives of women as both care recipients and caregivers.

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May 16, 2019 in Scholarship, Tax | Permalink | Comments (0)

Abreu: Tax 2018 — Requiem For Ability To Pay

Alice Abreu (Temple), Tax 2018: Requiem for Ability to Pay, 51 Loyola L.A. L. Rev. 61 (2018) (reviewed by Neal Buchanan (Florida) here):

Enactment of the TCJA was followed by a mad dash to understand its effects. The speed and process of enactment left no time for serious attempts to analyze whether the TCJA transforms the income tax system in any fundamental way. This Essay is a first step in that analysis. Although some of the most important changes I discuss are set to expire or phase out after 2025, understanding their policy implications is important, not only because they are the law now but also because Congress may extend them, perhaps indefinitely.

The TCJA has changed the way the tax system operationalizes the principles of horizontal equity and ability to pay, has brought the base of the regular tax closer to the base of the AMT, and has increased the number of tax provisions that have been promulgated in the form of standards, which will require the deployment of significant administrative and judicial resources before they can be implemented effectively. By removing consideration of taxpayers’ support obligations from the tax base (except as relevant to the determination of filing status in the case of taxpayers who might qualify for the statuses of head of household or surviving spouse), the TCJA has jettisoned the value of ability to pay. It has unmoored the tax base zero bracket from the poverty level and created a system in which two taxpayers with very different ability to pay as a result of support obligations will be taxed the same, and in which two taxpayers with the same ability to pay will be taxed differently. The TCJA has turned the concept of horizontal equity on its head. In some cases the tax base will even be the taxpayer’s gross income in its entirety, subjecting to taxation even the amount needed for minimal subsistence.

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May 16, 2019 in Scholarship, Tax | Permalink | Comments (1)

Modeling the Internal Revenue Code In A Heterogeneous-Agent Framework: An Application To The TCJA

Rachel Moore & Brandon Pecoraro (Joint Committee on Taxation), Modeling the Internal Revenue Code in a Heterogeneous-Agent Framework: An Application to TCJA:

Macroeconomic models used for tax policy analysis often simultaneously abstract from two features of the US tax code: special tax treatment for preferential capital income, and the joint tax treatment of ordinary capital and labor income. In this paper, we explore the extent to which explicitly accounting for these tax details has macroeconomic implications within a heterogeneous-agent model.

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May 16, 2019 in Scholarship, Tax | Permalink | Comments (1)

Wednesday, May 15, 2019

Lederman: Does Enforcement Reduce Voluntary Tax Compliance?

Leandra Lederman (Indiana), Does Enforcement Reduce Voluntary Tax Compliance?, 2018 BYU L. Rev. 623 (reviewed by Orly Mazur (SMU) here):

Governments generally use enforcement methods, such as audits and the imposition of penalties, to deter noncompliance with tax laws. Although this approach is consistent with most economic modeling of tax compliance, some scholars caution that enforcement may backfire, “crowding out” taxpayers’ intrinsic motivations to pay taxes to such an extent that they reduce their tax payments. This article analyzes the existing evidence to determine if and when this occurs.

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May 15, 2019 in Scholarship, Tax | Permalink | Comments (0)

A New Growth Vision For Legal Education, Part I: Sustainable Growth Or Dead Cat Bounce?

Hilary G. Escajeda (Denver), Legal Education: A New Growth Vision Part I – The Issue: Sustainable Growth or Dead Cat Bounce? A Strategic Inflection Point Analysis, 97 Neb. L. Rev. 628 (2019):

Legal education programs now face strategic inflection points. To survive and thrive long-term, education programs must embrace entrepreneurship, technology, innovation, platforms, and customer service as the means by which to navigate through strategic inflection points. Imagination, adaptability, agility, determination, and speed will separate market leaders from laggards. Scrappy, entrepreneurial, and action-oriented programs that deliver omni-channel, lifelong knowledge and skills development solutions are the movers that will radically redefine and likely dominate the legal education industry. Slow, tradition-bound programs resistant to change are non-movers that face extinction.

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May 15, 2019 in Legal Education, Scholarship | Permalink | Comments (3)

Elizabeth Warren’s Wealth Tax Will Aggravate Global Inequality

Monica Victor (S.J.D. 2019, Florida), U.S. Sen. Warren’s Wealth Tax Proposal: Will Fighting U.S. Inequality Aggravate Global Inequality?:

Recently, the U.S. Senator Elizabeth Warren proposed a Wealth Tax on “Americans Super Millionaires” which was announced as a measure to reduce U.S. inequality, to rebuild the American middle class and to promote tax justice. Wealth inequality is a global issue, the imposition of a domestic Wealth Tax without international coordination and agreed international rules about the allocation of taxing rights and wealth among countries will aggravate global inequality and concentrate public revenue in jurisdictions with better enforcement capabilities.

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May 15, 2019 in Scholarship, Tax | Permalink | Comments (1)

Tuesday, May 14, 2019

Polsky: Explaining Choice-Of-Entity Decisions By Silicon Valley Start-Ups

Gregg D. Polsky (Georgia),  Explaining Choice-of-Entity Decisions by Silicon Valley Start-Ups, 70 Hastings L.J. 409 (2019):

Perhaps the most fundamental role of a business tax advisor is to recommend the optimal entity choice for nascent business enterprises. Nevertheless, even in 2018, the choice-of-entity analysis remains highly muddled. Most tax practitioners across the United States consistently recommend flow-through entities, such as LLCs and S corporations, to their clients. In contrast, a discrete group of highly sophisticated tax professionals, those who advise start-ups in Silicon Valley and other hotbeds of start-up activity, prefer C corporations.

Prior commentary has described and tried to explain this paradox without finding an adequate explanation. These commentators have noted a host of superficially plausible explanations, all of which they ultimately conclude are not wholly persuasive. The puzzle therefore remains.

This article attempts to finally solve the puzzle by examining two factors that have been either vastly underappreciated or completely ignored in the existing literature.

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May 14, 2019 in Scholarship, Tax | Permalink | Comments (1)

Mazur: Taxing The Robots

Orly Mazur (SMU), Taxing the Robots, 46 Pepp. L. Rev. 277 (2019):

Robots and other artificial intelligence-based technologies are increasingly outperforming humans in jobs previously thought safe from automation. This has led to growing concerns about the future of jobs, wages, economic equality and government revenues. To address these issues, there have been multiple calls around the world to tax the robots. Although the concerns that have led to the recent robot tax proposals may be valid, this Article cautions against the use of a robot tax. It argues that a tax that singles out robots is the wrong tool to address these critical issues and warns of the unintended consequences of such a tax, including limiting innovation. Rather, advances in robotics and other forms of artificial intelligence merely exacerbate the issues already caused by a tax system that under-taxes capital income and over-taxes labor income.

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May 14, 2019 in Scholarship, Tax | Permalink | Comments (2)

Walker: The Practice And Tax Consequences Of Nonqualified Deferred Compensation

David I. Walker (Boston University), The Practice and Tax Consequences of Nonqualified Deferred Compensation, 75 Wash. & Lee L. Rev. 2065 (2018):

Although nonqualified deferred compensation plans lack explicit tax preferences afforded qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after‐tax return on deferred sums than employees could do on their own. Several commentators have proposed tax reform aimed at leveling the playing field between cash and nonqualified deferred compensation, but reform would not be easy or straightforward. This Article investigates nonqualified deferred compensation practices and shows that joint tax minimization often takes a backseat to accounting priorities and participant diversification concerns.

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May 14, 2019 in Scholarship, Tax | Permalink | Comments (0)

Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation

Reuven Avi-Yonah (Michigan), Lily Batchelder (NYU), Cliff Fleming (BYU), David Gamage (Indiana), Ari Glogower (Ohio State), Daniel Hemel (Chicago), David Kamin (NYU), Mitchell Kane (NYU), Rebecca Kysar (Fordham), David Miller (Proskauer, New York), Darien Shanske (UC-Davis), Dan Shaviro (NYU) & Manoj Viswanathan (UC-Hastings), The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the 2017 Tax Legislation, 103 Minn. L. Rev. 1439 (2019) (reviewed by David Gamage (Indiana) here):

This report describes various tax games, roadblocks, and glitches in the tax legislation currently before Congress, titled the Tax Cuts and Jobs Act (TCJA). The complex rules proposed in the House and Senate bills will allow new tax games and planning opportunities for well-advised taxpayers, which will result in unanticipated consequences and costs. These costs may not currently be fully reflected in official estimates already showing the bills adding over $1 trillion to the deficit in the coming decade. Other proposed changes will encounter legal roadblocks that will jeopardize critical elements of the legislation. Finally, in other cases, technical glitches in the legislation may improperly and haphazardly penalize or benefit individual and corporate taxpayers.

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May 14, 2019 in Scholarship, Tax | Permalink | Comments (0)

Kahn: Suspension Of Miscellaneous Itemized Deductions Conflicts With Sound Tax Policy

Douglas A. Kahn (Michigan), Suspension of Miscellaneous Itemized Deductions is Ill-Advised, 102 Tax Notes 777 (Feb. 18, 2019):

Section 67(g), added to the code by the Tax Cuts and Jobs Act, suspends any miscellaneous itemized deductions from 2018 to 2025. A miscellaneous itemized deduction is any itemized deduction that is not listed in section 67(b). This article explains that the suspension of some of the miscellaneous itemized deductions is unjustified and conflicts with fundamental tax policy.

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May 14, 2019 in Scholarship, Tax | Permalink | Comments (2)

Monday, May 13, 2019

The 50 Most-Cited Tax Articles of All Time

Jonathan H. Choi (NYU), The Most-Cited Tax Articles of All Time, 36 Yale J. on Reg.: Notice & Comment (May 11, 2019):

Summer is nearly here, and for fellow tax nerds in need of beach reads, I’ve assembled a list of the 50 most widely cited tax law journal articles. The list is inspired by (and uses the same methodology as) Fred Shapiro and Michelle Pearse’s essay, The Most-Cited Law Review Articles of All Time [110 Mich. L. Rev. 1483 (2012)]

The list below is ordered by number of citations in other law review articles, according to HeinOnline. For comparison, I also list Google Scholar citation counts, which include cites by certain non-law journals, practice publications, books, and courts. 

Most-cited tax articles of all time

  Article HeinOnline Article Cites Google Scholar Cites
1. William D. Andrews (Harvard), A Consumption-Type or Cash Flow Personal Income Tax, 87 Harv. L. Rev. 1113 (1974) 437 783
2. Louis Kaplow (Harvard) & Steven Shavell (Harvard), Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income, 23 J. Legal Stud. 667 (1994) 305 687
3. Boris I. Bittker (Yale), A Comprehensive Tax Base as a Goal of Income Tax Reform, 80 Harv. L. Rev. 925 (1967) 298 464
4. Boris I. Bittker (Yale), Federal Income Taxation and the Family, 27 Stan. L. Rev. 1389 (1975) 284 438
5. Joseph Bankman (Stanford) & Thomas Griffith (USC), Social Welfare and the Rate Structure: A New Look at Progressive Taxation, 75 Cal. L. Rev. 1905 (1987) 227 352
6. Reuven S. Avi-Yonah (Michigan), Globalization, Tax Competition, and the Fiscal Crisis of the Welfare State, 113 Harv. L. Rev. 1573 (2000) 226 748
7. William T. Plumb, Jr. (Hogan & Hartson, Washington, D.C.), The Federal Income Tax Significance of Corporate Debt: A Critical Analysis and a Proposal, 26 Tax L. Rev. 369 (1971) 208 355
8. Walter J. Blum (Chicago) & Harry Kalven, Jr. (Chicago), The Uneasy Case for Progressive Taxation, 19 U. Chi. L. Rev. 417 (1952) 200 418
9. Peter D. Enrich (Northeastern), Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 Harv. L. Rev. 377 (1996) 193 371
10. Michael J. Graetz (Columbia), To Praise the Estate Tax, Not to Bury It, 93 Yale L.J. 259 (1983) 185 264
11. Erwin N. Griswold (Harvard), The Need for a Court of Tax Appeals, 57 Harv. L. Rev. 1153 (1944) 185 240
12. Mark G. Kelman (Stanford), Personal Deductions Revisited: Why They Fit Poorly in an Ideal Income Tax and Why They Fit Worse in a Far from Ideal World, 31 Stan. L. Rev. 831 (1979) 177 248
13. Daniel I. Halperin (Harvard), Interest in Disguise: Taxing the Time Value of Money, 95 Yale L.J. 506 (1986) 168 259
14. Joseph T. Sneed (Stanford), The Criteria of Federal Income Tax Policy, 17 Stan. L. Rev. 567 (1965) 164 211
15. Michael J. Graetz (Columbia) & Michael M. O’Hear (Marquette), The “Original Intent” of U.S. International Taxation, 46 Duke L.J. 1021 (1997) 162 345
16. Eric A. Posner (Chicago), Law and Social Norms: The Case of Tax Compliance, 86 Va. L. Rev. 1781 (2000) 155 403
17. David A. Weisbach (Chicago) & Jacob Nussim (Bar-Ilan), The Integration of Tax and Spending Programs, 113 Yale L.J. 955 (2004) 150 245
18. Marjorie E. Kornhauser (Tulane), The Rhetoric of the Anti-Progressive Income Tax Movement: A Typical Male Reaction, 86 Mich. L. Rev. 465 (1987) 146 214
19. R.A. Musgrave (Harvard), In Defense of an Income Concept, 81 Harv. L. Rev. 44 (1967) 140 228
20. Marjorie E. Kornhauser (Tulane), Love, Money, and the IRS: Family, Income-Sharing, and the Joint Income Tax Return, 45 Hastings L.J. 63 (1993) 139 216
21. Paul L. Caron (Pepperdine), Tax Myopia, or Mamas Don’t Let Your Babies Grow up to Be Tax Lawyers, 13 Va. Tax Rev. 517 (1994) 137 155
22. Richard L. Doernberg (Emory) & Fred S. McChesney (Emory), On the Accelerating Rate and Decreasing Durability of Tax Reform, 71 Minn. L. Rev. 913 (1987) 136 183
23. Reuven S. Avi-Yonah (Michigan), The Structure of International Taxation: A Proposal for Simplification, 74 Tex. L. Rev. 1301 (1996) 129 285
24. Anne L. Alstott (Yale), Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 Colum. L. Rev. 2001 (1996) 129 192
25. Stanley S. Surrey (Harvard), Federal Taxation of the Family—The Revenue Act of 1948, 61 Harv. L. Rev. 1097 (1948) 127 218

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May 13, 2019 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (5)

Lesson From The Tax Court: Get It In Writing!

Tax Court (2017)Last week’s case of Jason Aaron Cook v. Commissioner, T.C. Memo. 2019-48 (May 7, 2019) (Judge Colvin), teaches a straightforward lesson: if you are not the custodial parent of a child and want to claim the child as your “dependent” within the meaning of §152, you need to obtain a Form 8332, or an equivalent document, from the custodial parent.  You need to get it in writing.

The case also teaches a more fundamental lesson in some of the complexities of family taxation.  The lesson here shows how the tax law indirectly defines families through the concept of dependents.  When a taxpayer can claim someone as a dependent, that triggers a host of different tax rules for that taxpayer---mostly good.  The cumulative effect creates the rules of family taxation. 

The biggest group of dependents are children, at least until more Boomers hit their dotage.  When spouses stay together the idea of defining families through the concept of dependents works pretty well.  When spouses split up, however, it becomes much harder figuring out the appropriate family unit to tax.  Section 152(e) uses a concept of "custodial parent."  Last week’s case is a good illustration of the Tax Code’s basic approach, and its limitations.

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May 13, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure | Permalink | Comments (2)

Sunday, May 12, 2019

Zakat: Islam’s Missed Opportunity To Limit Predatory Taxation

Timur Kuran (Duke), Zakat: Islam’s Missed Opportunity To Limit Predatory Taxation:

One of Islam’s five canonical pillars is a predictable, fixed, and mildly progressive tax system called zakat. It was meant to finance various causes typical of a pre-modern government. Implicit in the entire transfer system was personal property rights as well as constraints on government—two key elements of a liberal order. Those features could have provided the starting point for broadening political liberties under a state with explicitly restricted functions. Instead, just a few decades after the rise of Islam, zakat opened the door to arbitrary political rule and material insecurity.

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May 12, 2019 in Scholarship, Tax | Permalink | Comments (0)

The Top Five New Tax Papers

SSRN Logo (2018)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 a new paper debuting on the list at #5:

  1. [372 Downloads]  Taxing the Digital Economy Post BEPS ... Seriously, by Andrés Báez (Universidad Carlos III de Madrid) & Yariv Brauner (Florida)
  2. [371 Downloads]  Residual Profit Allocation by Income, by Michael Devereux (Oxford), Alan Auerbach (UC-Berkeley), Michael Keen (IMF), Paul Oosterhuis (Skadden), Wolfgang Schön (Max Planck) & John Vella (Oxford) (reviewed by Christine Kim (Utah) here)
  3. [169 Downloads]  The Architecture of a Basic Income, by Miranda Perry Fleischer (San Diego) & Daniel Jacob Hemel (Chicago)
  4. [166 Downloads]  Fixing Philanthropy: A Vision for Charitable Giving and Reform, by Roger Colinvaux (Catholic)
  5. [160 Downloads]  Critical Tax Thinking, by Edward Kleinbard (USC)

May 12, 2019 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, May 10, 2019

Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Soled & Schmalbeck's Determining An Asset's Tax Basis Absent A Meaningful Transfer Tax Regime

This week, Ariel Jurow Kleiman (San Diego) reviews Determining an Asset's Tax Basis in the Absence of A Meaningful Transfer Tax Regime, a new work by Jay A. Soled (Rutgers) and Richard L. Schmalbeck (Duke), recently published in the Columbia Journal of Tax Law.

StevensonIronically, although death and taxes are the only two certainties in life, the “death tax” is largely voluntary. (Forgive the controversial term—its purpose is rhetorical, not ideological.)  With the estate and gift tax exemption up to $11.18 million per person, the tax’s voluntary nature is truer now than ever before.  In their recent article, Jay Soled and Richard Schmalbeck argue that the transfer tax’s diminution will not only reduce estate and gift tax revenue, but will enable taxpayers to game the income tax as well.

The crux of the authors' argument rests on IRC § 1014(f), which requires that the stepped-up basis of property acquired from a decedent not exceed the property’s value that is reported for estate tax purposes.  This rule creates two counterbalancing incentives for taxpayers appraising an estate’s assets.  First, taxpayers will want to undervalue property to reduce estate tax burdens.  Second, taxpayers will want to overvalue property to obtain a higher basis under § 1014.  When weighing both, the estate tax’s pressures have typically dominated, largely because the tax cannot be deferred until later.  Thus, a robust estate tax mitigates incentives for taxpayers to abuse the already generous § 1014 step-up in basis. 

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May 10, 2019 in Ariel Stevenson, Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

NYU Symposium: Social Welfare Organizations — Better Alternatives To Charities?

NYU Law (2016)Symposium, Social Welfare Organizations: Better Alternatives to Charities?, 21 N.Y.U. J. Legis. & Pub. Pol'y 337-634 (2018):



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May 10, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Thursday, May 9, 2019

Elkins: Consumption Taxation In Rawls' Theory Of Justice

David Elkins (Netanya), Consumption Taxation in Rawls' Theory of Justice, 29 Cornell J.L. & Pub. Pol'y __ (2019):

The question of whether income or consumption is a more appropriate tax base has a long and venerable history. One participant in the debate over the appropriate tax base, and one whose voice has attracted relatively little attention in this regard, is the philosopher John Rawls. In his monumental work, A Theory of Justice, Rawls argued that in certain circumstances a proportional consumption tax would be preferable to a progressive income tax. This Article examines whether it is possible to justify a consumption taxation within the framework of Rawls’ overall theory of justice.

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May 9, 2019 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, May 7, 2019

Grewal: The President's Tax Returns

Trump Tax ReturnsAndy Grewal (Iowa), The President's Tax Returns:

This Article examines whether congressional committees enjoy the unrestricted authority to demand a President’s tax returns. It concludes that they do not. Though a federal statute seemingly compels the IRS to furnish, on request, anyone’s tax returns to some congressional committees, a statute cannot transcend the constitutional limits on Congress’s investigative authority. Congress enjoys a near-automatic right to review a President’s tax returns only in the impeachment context.

After analyzing the general constitutional principles, the Article briefly examines the House Ways & Means Committee’s disputed request for President Trump’s tax return information.

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May 7, 2019 in Scholarship, Tax | Permalink | Comments (15)

Where Scholars Work Trumps Pedigree In Predicting Research Productivity

Inside Higher Ed, Pedigree and Productivity:

2015 study found that “social inequality” across a range of disciplines was so bad that just 25 percent of Ph.D. institutions produced 71 to 86 percent of tenured and tenure-track professors, depending on field.

The effect was more extreme the farther up the chain the researchers looked, based on their own program ranking system: the top 10 programs in each discipline produced 1.6 to three times more faculty than even the next 10 programs. The top 11 to 20 programs produced 2.3 to 5.6 times more professors than the next 10. In theory, this reflects the quality of those programs. But critics say in-group hiring is also about snobbery.

Now computer scientists at the University of Colorado at Boulder who led that earlier study say academic pedigree isn’t destiny after all — at least in terms of future productivity.

“Our results show that the prestige of faculty’s current work environment, not their training environment, drives their future scientific productivity,” says the [Productivity, Prominence, and the Effects of Academic Environment] in Proceedings of the National Academy of Sciences. Current and past locations, meanwhile, "drive prominence.”

That is, when it comes to actual research output, where one works is more important than where one trained.


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May 7, 2019 in Legal Education, Scholarship | Permalink | Comments (2)

Monday, May 6, 2019

Lesson From The Tax Court: It Takes More Than Winning To Get Attorneys Fees Under §7430

Tax Court Logo 2It’s always nice to beat the IRS in court.  It is even sweeter when you can also make the IRS pay your attorneys fees.  But that is not so easy, even when you win.  In last week’s Tax Court opinion in Jason Bontrager v. Commissioner, T.C. Memo. 2019-45 (May 1, 2019) (Bontrager II) Judge Lauber teaches a short lesson about the attorneys fees award provisions in §7430.  Section 7430 balances policies of paying taxpayers when the government loses with protecting the federal fisc when the government’s litigating position was reasonable.

Bontrager II was a proceeding where the taxpayer sought to recover reasonable litigation costs under §7430 after having won the most significant issue in the case.  Mr. Bontrager followed all the proper administrative steps to get attorneys fees.  Yet he failed to get fees because Judge Lauber found that the IRS’s losing position was substantially justified.  That idea of substantial justification often prevents attorneys fees.  But if you click the "continue reading" button you can learn the one weird trick taxpayers use to overcome it!  (Except it’s not really a trick.  And it’s not really weird.  It’s right in the statute.  I am just trying to get you to read on.)

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May 6, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure | Permalink | Comments (0)

Sunday, May 5, 2019

The Top Five New Tax Papers

SSRN Logo (2018)This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

  1. [346 Downloads]  Residual Profit Allocation by Income, by Michael Devereux (Oxford), Alan Auerbach (UC-Berkeley), Michael Keen (IMF), Paul Oosterhuis (Skadden), Wolfgang Schön (Max Planck) & John Vella (Oxford) (reviewed by Christine Kim (Utah) here)
  2. [331 Downloads]  Taxing the Digital Economy Post BEPS ... Seriously, by Andrés Báez (Universidad Carlos III de Madrid) & Yariv Brauner (Florida)
  3. [185 Downloads]  The Fraud Triangle and Tax Evasion, by Leandra Lederman (Indiana)
  4. [160 Downloads]  The Architecture of a Basic Income, by Miranda Perry Fleischer (San Diego) & Daniel Jacob Hemel (Chicago)
  5. [158 Downloads]  Fixing Philanthropy: A Vision for Charitable Giving and Reform, by Roger Colinvaux (Catholic)

May 5, 2019 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, May 3, 2019

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Yin's Stanley Surrey And The Tax Legislative Process

This week, Mirit Eyal-Cohen (Alabama) reviews George K. Yin (Virginia), 'Who Speaks for Tax Equity and Tax Fairness?': Stanley Surrey and the Tax Legislative Process (May 2019):

Mirit-Cohen (2018)We need more articles like Yin’s. Not only because nowadays it is hard to find papers depicting good-old archival research on intellectual history and history of taxation. I am a speaking as avid fan of both genres as I have written in the past here on the unknown collaboration between Stanley Surrey and Justice Roger Traynor and their idea of preventive tax policy. But Yin’s extensive work with Surrey’s memoir reveals a new aspect of Surrey’s philosophy. There have been numerous articles written about the legendary Stanley S. Surrey, one of the most influential tax professionals of the twentieth century. His work has been cited in over 56,000 papers. And while Surrey passed away in 1984, only in the last 20 years, about 3,000 law review articles broadly and directly conferred, relied upon, or reexamined his work. Although many scholars focused on Surrey’s seminal work on tax policy, specifically the tax expenditures budget, Yin is taking a different approach. He has thoroughly studied Surrey’s life through his memoir and some of his less well-known commentaries to evaluate Surrey’s view of the federal tax legislative process trying to answer the question of what was Surrey’s opinion on the manner tax rules are created in the U.S. and the institution that should speak for tax equity and tax fairness?

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May 3, 2019 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

UC-Hastings Hosts 2019 Northern California Tax Roundtable

UC-Hastings Logo 3UC-Hastings hosts the 2019 Northern California Tax Roundtable today with these papers and commentary:

Heather Field (UC-Hastings), Coping with Tax Transition Risk
Commentator: Darien Shanske (UC-Davis)

David Hasen (Florida), Inequality and Spending Policy
Commentator: Eric Rakowski (UC-Berkeley)

Darien Shanske (UC-Davis), States and the World: Another Essay on Expanding State Fiscal Capacity
Commentator: Mark Gergen (UC-Berkeley)

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May 3, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Cal-State Northridge Hosts 2019 Tax Development Conference

Cal State NorthridgeThe Bookstein Institute for Higher Education in Taxation at California State University, Northridge, in collaboration with the College of Business at Central Washington University, hosts the 2019 Tax Development Conference today at California State University, Northridge. For a list of the papers and speakers, see here. Among the papers are Hilary G. Escajeda (Denver), Human-Performed Work in an Era of Rapidly Changing Technologies:

The decades ahead will bring forth a convergence of increasingly capable technologies (e.g., artificial intelligence and robotics) that will fundamentally reshape and transform social and work environments by replacing humans in ordinary jobs. Klaus Schwab, Founder of the World Economic Forum and author of Fourth Industrial Revolution, perceptively identifies these impending paradigm shifts and argues these technologies will challenge policymakers to “think strategically about the forces of disruption and innovation shaping our future.”

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May 3, 2019 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Thursday, May 2, 2019

Crawford: Less Trust Means More Trusts

Bridget J. Crawford (Pace), Less Trust Means More Trusts, 75 Wash. & Lee L. Rev. Online 74 (2019):

The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the world, one can discern fault lines in contemporary U.S. political and legal structures. These are made even plainer when examined through the lens of ongoing litigation involving human embryos created by actress Sofia Vergara and her former fiancé.

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May 2, 2019 in Scholarship, Tax | Permalink | Comments (0)

Beyond The 'Practice Ready' Buzz: Skills Needed By New Attorneys To Disrupt The Legal Industry

Jason Dykstra (Concordia), Beyond the 'Practice Ready' Buzz: Sifting Through the Disruption of the Legal Industry to Divine the Skills Needed by New Attorneys, 11 Drexel L. Rev. 149 (2019):

A heightened velocity of change enveloped the legal profession over the last two decades. From big law to rural practitioners, the traditional law firm model proved ripe for disruption. This disruption is fueled by several discrete changes in how legal services are provided, including technological advances that allow for the automation of many routine tasks and the disaggregation of legal services; enhanced client sophistication and cost-consciousness; global competition from offshoring routine legal services; the rise of the domestic gig economy, creating a new wave of home-sharing legal services; and competition from non-traditional legal services providers.

Figure 1

In the face of declining revenues, rapid systemic changes, and burgeoning competition from near and far, law firms have shuttered many of the traditional mentorship opportunities for new attorneys. Firms have also curtailed many once-billable activities that formerly served as profitable training grounds for new associates at law firms.

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May 2, 2019 in Legal Education, Scholarship | Permalink | Comments (0)

Wednesday, May 1, 2019

Death And Taxes: Taxation Matters For Firm Survival

Serhan Cevik (IMF) & Fedor Miryugin (IMF), Death and Taxes: Does Taxation Matter for Firm Survival?:

This paper investigates the impact of taxation on firm survival, using hazard models and a large-scale panel dataset on over 4 million nonfinancial firms from 21 countries over the period 1995–2015. We find ample evidence that a lower level of effective marginal tax rate improves firms’ survival chances. This result is not only statistically but also economically important and remains robust when we partition the sample into country subgroups.

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May 1, 2019 in Scholarship, Tax | Permalink | Comments (0)

Lederman: Is The Taxpayer Bill Of Rights Enforceable?

Taxpayer Bill of RightLeandra Lederman (Indiana), Is the Taxpayer Bill of Rights Enforceable?:

In 2016, Congress enacted a statutory Taxpayer Bill of Rights containing a list of ten rights but lacking an explicit remedy or enforcement mechanism. Are the rights listed therefore merely aspirational, or are some or all of them enforceable? It is worth noting that the statute does not say that these rights are unenforceable. Recently, taxpayers such as Facebook have begun to demand remedies for alleged violations of the rights listed in the statute, such as “the right to appeal a decision of the Internal Revenue Service in an independent forum.” This Essay argues that not only does the statutory text not provide a private right of action, U.S. Supreme Court case law does not permit such a right to be inferred.

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May 1, 2019 in Scholarship, Tax | Permalink | Comments (0)

Study Shows Significant Impact Of Legacy Status On Admissions

Inside High Ed, Study Shows Significant Impact Of Legacy Status On Admissions:

Last year's survey of college admissions directors by Inside Higher Ed found that 42 percent of admissions directors at private colleges and universities said legacy status is a factor in admissions decisions at their institutions. The figure at public institutions is only 6 percent.

Amid numerous critical op-eds about legacy admissions, the think tank New America has proposed that colleges lose eligibility for federal student aid if they favor alumni children. Higher education groups have opposed the idea. Many college presidents have argued that legacy preferences (especially at private institutions) are a legitimate way to build community for a college. Amid the debate, there has been little information on a key question: Does legacy status play a significant role in getting in to top colleges?

As it turns out, there has been one in-depth analysis of the impact of legacy status on admissions at elite private colleges. The study isn't new. It was published in 2011 in Economics of Education Review [The Impact of Legacy Status on Undergraduate Admissions at Elite Colleges and Universities], based on data from a few years before that. The author is the first to admit that, in the years since, competition for admission to elite colleges has become even more intense, and some of those colleges have stepped up efforts to admit a more diverse set of students. But he does not know of any research with this focus that has been published more recently.

Table 2

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May 1, 2019 in Legal Education, Scholarship | Permalink | Comments (2)

Tuesday, April 30, 2019

Cui Presents A Conceptual Defense Of The Digital Services Tax Today At NYU

Cui (2018)Wei Cui (British Columbia) presents The Digital Services Tax: A Conceptual Defense (reviewed by Kim Brooks (Schulich School of Laws, Dalhousie University) and Ruth Mason (Virginia)) at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

Since 2018, the UK government, the European Commission, and several European national governments have advanced bold proposals for a new “digital services tax” (DST), with the aim of capturing profits earned by multinationals that reflect value contributed by users of digital platforms. I offer a novel set of arguments in support of the DST, which appeal to both efficiency and fairness considerations. In particular, the DST would allow location-specific rent (LSR) earned by digital platforms to be captured by the countries in which such rent arises. I argue that platform LSR is often hidden from view under the traditional international income taxation paradigm, due to that paradigm’s focus on physical presence, source of payment, and profit allocation among related entities. Moreover, that paradigm ignores a basic intuition about how rent accruing to mobile intangible assets should be assigned: when the deployment of a technology is non-rival with respect to multiple locations, it is both efficient and fair to assign any rent earned from the technology’s deployment with respect to a given location to that location.

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April 30, 2019 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Shanske & Gamage: Why States Can Tax the GILTI

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

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

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April 30, 2019 in Scholarship, Tax | Permalink | Comments (0)

Monday, April 29, 2019

Lesson From The Tax Court: The Role Of The Taxpayer Bill of Rights

Taxpayer Bill of RightOver the years Congress has enacted various pieces of legislation that it labels “Taxpayer Bill of Rights” (TBOR).  The original TBOR came in 1988 as part of the Technical and Miscellaneous Revenue Act of 1988.  It was followed by a free-standing TBOR II in 1996, and then TBOR III in 1998, enacted as part of The IRS Restructuring and Reform Act of 1998. 

All three of these TBORs created substantive changes in the tax laws, such as adding procedures for the IRS to follow, giving taxpayers greater access to the Tax Court, giving taxpayers the right to sue under certain circumstances, creating the Taxpayer Advocate Service, etc. 

In 2015, Congress did something different.  It enacted yet another TBOR but this time the substantive command was framed as an additional duty given to the Commissioner, not additional rights given to taxpayers.  The new duty is to “ensure that employees of the Internal Revenue Service are familiar with and act in accord with taxpayer rights as afforded by other provisions of this title.”  There follows a list of 10 nobly worded vagaries, such as “the right to quality service” and “the right to a fair and just tax system” and “the right to finality” which is somewhat in tension with “the right to challenge the position of the Internal Revenue Service” and “the right to appeal a decision of the Internal Revenue Service in an independent forum” (think Collection Delay Process).  You can find the complete high-minded list in §7803(a)(3)

Taxpayers want TBOR IV to be more than pretty words.  They want §7803(a)(3) to give them substantive rights.  The recent case of Maria Ivon Moya v. Commissioner, 152 T.C. No. 11 (Judge Halpern) (April 17, 2019), teaches a lesson about that.  The case did not directly involve §7803(b).  It instead involved the administrative adoption of taxpayer rights in 2014, the year before the statute’s enactment.  Still, the Tax Court’s decision here is an important lesson that presages what is likely to happen when a taxpayer tries to allege violations of the statutory TBOR IV: do not waste Tax Court opportunities to argue the merits of an NOD by complaining about procedural errors. 

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April 29, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure | Permalink | Comments (3)

Formulary Apportionment Workshop In Montréal

CiranoTax Prof speakers at last week's Formulary Apportionment Workshop at the Center for Interuniversity Research and Analysis of Organizations (CIRANO) in Montréal:

  • Yariv Brauner (Florida)
  • Cliff Fleming (BYU)
  • Itai Grinberg (Georgetown)
  • Walter Hellerstein (Georgia)
  • Bob Peroni (Texas)
  • Steve Shay (Harvard)

April 29, 2019 in Conferences, Scholarship, Tax | Permalink | Comments (0)