Paul L. Caron
Dean




Friday, October 1, 2021

Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Building Better Conservation Easements

This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by K. King Burnett, John D. Leshy (UC-Hastings), and Nancy A. McLaughlin (Utah), Building Better Conservation Easements for America the Beautiful, 45 Harv. Envtl. L. Rev. Online ___ (2021).

Roberts (2020)In May, the Biden Administration released a report developed by the Departments of Commerce, Interior, and Agriculture, and the Council on Environmental Quality, “Conserving and Restoring America the Beautiful,” which announced a new initiative to conserve 30 percent of the nation’s land and waters by 2030. Professors Arthur Middleton (UC Berkeley) and Justin Brashares (UC Berkeley), note in their New York Times op/ed, that additional lands twice the size of Texas will need to be conserved to achieve this goal. Given that more than half of U.S. forests and two-thirds of the species on the Endangered Species List have their primary habitat on private lands, they argue that conservation easements provide the key pathway to conservation at this scale. 

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October 1, 2021 in Scholarship, Tax, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week's Virtual Tax Workshops

Tuesday, October 5: Michelle D. Layser (Illinois; Google Scholar) presents Subsidizing Gentrification: A Spatial Analysis of Place-Based Tax Incentives, 11 UC Irvine L. Rev. __ (2021), virtually as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle.

Tuesday, October 5: Andrew T. Hayashi (Virginia; Google Scholar) presents Dynamic Property Taxes And Racial Gentrification, 96 Notre Dame L. Rev. 1517 (2021), virtually as part of the UC-Hastings Center on Tax Law 2021 Tax Speaker Series. If you would like to attend, please email tax@uchastings.edu

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October 1, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Workshops | Permalink

Wilking Presents Does It Matter Who Remits? Evidence From U.S. States’ Voluntary Collection Agreements Today At Florida

Eleanor Wilking (Cornell) presents Does It Matter Who Remits? Evidence from U.S. States’ Voluntary Collection Agreements (with Yeliz Kaçamak (Boglaziçi University; Google Scholar) & Tejaswi Velayudhan (UC-Irvine; Google Scholar)) virtually at Florida today as part of its Tax Policy Colloquium hosted by David Hasen.

Wilking (2021)In South Dakota v. Wayfair (2018), the Supreme Court empowered states to require remote sellers to remit sales taxes, thereby eliminating a persistent difference in the tax treatment of online and brick and mortar commerce. Despite the attention this decision received, we know little about how shifting the responsibility to remit will affect consumption or the tax system. To remedy this, we use states’ staggered adoption of Voluntary Collection Agreements (VCAs), which committed large online retailers to remit sales taxes prior to Wayfair. We find that while retailer remittance stemmed sales tax base erosion, the effective tax increase arising from greater compliance was almost fully passed through to consumers via higher tax-inclusive prices. Among consumers, we find that wealthier households bore more of the tax burden after the policy, suggesting that closing this evasion channel was distributionally neutral, or even modestly progressive.

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October 1, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Bird-Pollan Presents Taxing The Ivory Tower Today At Boston College

Jennifer Bird-Pollan (Kentucky; Google Scholar) presents Taxing the Ivory Tower: Evaluating the Excise Tax on University Endowments virtually at Boston College today as part of its Tax Policy Collaborative hosted by James Repetti, Diane Ring, and Shu Yi Oei:

Jennifer-bird-pollan

The Tax Cuts and Jobs Act of 2017 introduced the first ever excise tax imposed on the investment income of university endowments. While it is a relatively small tax, this new law is a first step towards the exploration of taxing non-profit entities on the vast sums of wealth they hold in their endowments. In this Essay I take the new tax as a starting place for investigating the justification for tax exemption for universities and thinking through the consequences of changing our approach, both in the form of the new excise tax and possible alternatives. There remain reasons to be skeptical both about the design of the current tax and its ability to withstand the political efforts of the powerful set of universities who will be subject to it. Nonetheless, this new tax opens the door to a discussion of whether it is time to treat universities’ endowments more like the private equity funds they increasingly resemble.

Much of the attention paid to the so-called Tax Cuts and Jobs Act (TCJA) focused on the significant cut in the tax rate assessed to corporations, the creation of a deduction for non-corporate business income under the new § 199A, the elimination of a variety of tax benefits aimed at relatively lower income taxpayers, and the changes to the international tax regime. However, one change to the tax code created under this bill focused in another direction entirely, attempting, for the first time, to tax university endowments.

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October 1, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Thursday, September 30, 2021

Osofsky Reviews Book's Tax Administration And Racial Justice

Leigh Osofsky (North Carolina; Google Scholar), Racialized Frictions in Tax Administration (JOTWELL) (reviewing Leslie Book (Villanova; Google Scholar), Tax Administration and Racial Justice: The Illegal Denial of Tax Based Pandemic Relief to the Nation’s Incarcerated Population, 72 S.C. L. Rev. ___ (2021)):

JOTWELL Tax (2021)Leslie Book tells the remarkable story of the Coronavirus Aid, Relief, and Economic Security (CARES) Act emergency relief payments and the incarcerated population. In addition to having numerous plot twists and turns, the story underscores an important, underexamined issue: when the government administers the law, it imposes burdens (or frictions) on the public. These burdens may be borne disproportionately by different groups, including along racial dimensions. Anyone interested in agencies, tax administration, or race and the law would benefit from reading Book’s paper. ...

In perhaps the most powerful part of his paper, Book describes, at a theoretical level, how the administration of the law in general can create racialized burdens. Book draws on the work of sociology and public administration scholars to explain that, as a general matter, individuals experience frictions, or burdens, when attempting to collect benefits from or otherwise interact with the government. This insight may be particularly interesting to tax scholars, who have long paid attention to frictions in the substantive tax law, but have paid less attention to how they also operate in tax administration. ...

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September 30, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Medicare For All Vs. Medicare As Is: Eight Key Differences

Richard Kaplan (Illinois; Google Scholar), Medicare for All vs. Medicare As Is: Eight Key Differences, 12 J. Aging L. & Pol’y 115 (2021):

This article examines eight principal differences between the Medicare-for-All proposal championed by Senator Sanders, inter alia, and the Medicare program as it actually exists. In doing so, the article shows how the current program bears little resemblance to what the Medicare-for-All proponents are trying to enact. Those key differences include: (1) Medicare is a real program, (2) Medicare is only health care financing, (3) Medicare is an earned entitlement, (4) Medicare is not a simple program, (5)Medicare has a significant co-insurance component, (6) Medicare’s financing relies on non-Medicare enrollees, (7) Medicare’s coverage of long-term care is minimal, and (8) Medicare can accommodate expansion without major disruption.

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September 30, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Seto: Modeling The Welfare Effects Of Advertising — Preference-Shifting Deadweight Loss

Theodore P. Seto (Loyola-L.A.; Google Scholar), Modeling the Welfare Effects of Advertising: Preference-Shifting Deadweight Loss, 75 Tax L. Rev. ___ (2022):

This paper explores one of normative economic theory’s most nagging omissions: its failure to model the welfare effects of advertising and other forms of marketing — central features of all modern market economies. Technically, the paper relaxes the standard welfarist assumption that preferences are fixed and exogenous and reflect welfare. Although this assumption is not widely accepted in other social sciences, economics generally treats situations in which it does not hold as deviations from the general rule, and therefore of lesser interest. This paper offers an approach to incorporating within the standard model itself the possibility that marketing can change observed behaviors, and perhaps preferences, in non-welfare-enhancing ways.

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September 30, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, September 29, 2021

Huang, Peavey & Kaercher Present Capital Gains And Transfer Tax Policy In The Build Back Better Act Today At UC-Irvine

Chye-Ching Huang, Tabetha Peavey & Michael Kaercher (NYU Tax Law Center) present Capital Gains and Transfer Tax Policy in the Build Back Better Act virtually today at UC-Irvine as part of its Tax Policy Colloquium:

UCI_Law_This session of the colloquium will discuss current administration and Congressional proposals to increase the capital gains rate, replace the step up in basis at death with taxing gains at death or reintroducing a carryover basis rule, and address shortcomings in the current estate and gift tax regime. We will also discuss the NYU Tax Law Center, the motivation behind its creation, and its role in the tax policy world and tax legislative process. 

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September 29, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Zelenak: The Deductibility Of Capital Losses In A Mark-to-Market Regime

Lawrence Zelenak (Duke), The Deductibility of Capital Losses in a Mark-to-Market Regime, 172 Tax Notes Fed. 1965 (Sept. 20, 2021):

Tax Notes Federal (2020)In this article, Zelenak considers the extent to which capital losses should be deductible under a mark-to-market regime applicable to the tradable assets of wealthy taxpayers, as advocated by Senate Finance Committee Chair Ron Wyden, D-Ore., in a 2019 paper.

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September 29, 2021 in Scholarship, Tax, Tax Analysts, 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 September 1, 2021) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

    All-Time     Recent
1 Reuven Avi-Yonah (Michigan)  202,404 1 Reuven Avi-Yonah (Michigan) 8,058
2 Dan Shaviro (NYU) 123,491 2 Lily Batchelder (NYU) 4,518
3 Lily Batchelder (NYU) 122,414 3 David Kamin (NYU) 4,067
4 Daniel Hemel (Chicago) 120,909 4 Bridget Crawford (Pace) 4,062
5 David Gamage (Indiana-Bloom.) 119,638 5 Kim Clausing (UCLA)     3,988
6 Darien Shanske (UC-Davis) 112,712 6 Daniel Hemel (Chicago) 3,845
7 David Kamin (NYU) 110,183 7 D. Dharmapala (Chicago) 3,497
8 Cliff Fleming (BYU)    106,351 8 Ruth Mason (Virginia) 3,289
9 Manoj Viswanathan (Hastings) 103,237 9 Richard Ainsworth (Boston Univ.) 2,668
10 Rebecca Kysar (Fordham) 102,343 10 Zachary Liscow (Yale) 2,437
11 Ari Glogower (Ohio State) 101,453 11 David Gamage (Indiana-Bloom.) 2,411
12 Michael Simkovic (USC) 45,852 12 Margaret Ryznar (Indiana-Indy)   2,383
13 D. Dharmapala (Chicago) 45,282 13 Robert Sitkoff (Harvard) 2,325
14 Paul Caron (Pepperdine) 38,633 14 Darien Shanske (UC-Davis)  2,185
15 Louis Kaplow (Harvard) 35,624 15 Dan Shaviro (NYU) 2,158
16 Richard Ainsworth (Boston Univ.) 33,224 16 Yariv Brauner (Florida) 2,057
17 Bridget Crawford (Pace) 28,849 17 Louis Kaplow (Harvard) 2,017
18 Ed Kleinbard (USC) 27,942 18 Hugh Ault (Boston College) 2,015
19 Vic Fleischer (UC-Irvine) 27,728 19 Brad Borden (Brooklyn) 1,715
20 Robert Sitkoff (Harvard) 27,014 20 Diane Ring (Boston College) 1,560
21 Brad Borden (Brooklyn) 26,749 21 Francine Lipman (UNLV) 1,527
22 Jim Hines (Michigan) 26,099 22 Shu-Yi Oei (Boston College)  1,402
23 Ted Seto (Loyola-L.A.) 25,170 22 Vic Fleischer (UC-Irvine) 1,402
24 Katie Pratt (Loyola-L.A.) 24,718 24 Michael Simkovic (USC) 1,385
25 Richard Kaplan (Illinois) 24,601 25 Paul Caron (Pepperdine)   1,289

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September 29, 2021 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink

Tuesday, September 28, 2021

Hemel Presents Law And The New Dynamic Public Finance Today At NYU

Daniel Hemel (Chicago; Google Scholar) presents Law and the New Dynamic Public Finance virtually at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

Hemel_danielOver the last two decades, a new movement in academic economics has challenged conventional wisdoms in optimal tax theory and generated fresh insights for real-world tax policy. Known as “the new dynamic public finance,” this movement has altered the way that economists think about labor income taxation, capital taxation, and the credibility of tax policy over time. Along the way, the NDPF literature has identified new justifications for previously perplexing features of the existing tax-and-transfer system and has called other elements of the status quo into serious question.

Mainstream economics has embraced the new dynamic public finance revolution. All the top peer-reviewed economics journals publish NDPF papers. Undergraduate public finance textbooks cover basic NDPF concepts. But legal scholars—including scholars of tax law—have largely ignored the emergence of NDPF. One notable exception is Daniel Shaviro, whose 2007 article “Beyond the Pro-Consumption Tax Consensus” highlighted NDPF’s implications for income-averaging proposals and the choice between income and consumption tax bases.3 Since then, though, only seven law review articles in the Westlaw database have even mentioned “the new dynamic public finance,” and none has sought to take stock of NDPF’s wide-ranging implications for legal analysis.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Hoopes Presents Tax Boycotts Today At Georgetown

Jeff Hoopes (North Carolina; Google Scholar) presents Tax Boycotts (with H. Scott Asay (Iowa; Google Scholar), Jacob Thorndock (BYU; Google Scholar) & Jaron Wilde (Iowa; Google Scholar)) virtually at Georgetown today as part of its Tax Law and Public Finance Workshop hosted by Brian Galle:

Jeff-hoopesTo what extent do consumers boycott in response to corporate tax planning? Anecdotes suggest consumer boycotts are a meaningful deterrent to tax planning, but empirical evidence on their frequency and impact is lacking. We undertake a comprehensive study to examine how consumers’ purchase behavior relates to corporate tax planning. First, we survey a representative sample of U.S. consumers and find that more than a third of survey participants report having boycotted a firm, but zero report having done so for taxes. Next, we use a granular dataset of nationwide Nielsen weekly purchase transactions to analyze consumer purchase behavior around corporate tax planning news events. Across a battery of tests, we find little evidence of changes in actual consumer purchase behavior in response to tax news.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Goldin Presents Whose Child Is This? Improving Child-Claiming Rules In Safety Net Programs Today At UC-Hastings

Jacob Goldin (Stanford; Google Scholar) presents Whose Child is This? Improving Child-Claiming Rules in Safety Net Programs (with Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar)) virtually at UC-Hastings today as part of its 2021 Tax Speaker Series hosted by Heather Field and Manoj Viswanathan:

Goldin (2021)To address the staggering problem of child poverty in the United States, Congress may soon enact a child allowance akin to those in other high-income countries. As lawmakers debate doing so, they must consider the design of rules that determine how benefits are distributed. Among the more important of these are “child-claiming” rules. These rules determine which adults can receive benefits for which children, driving how well a program helps recipients and satisfies public goals.

This Article critically assesses the design of child-claiming rules for safety net programs, using as case studies the Child Tax Credit (CTC) and Earned Income Tax Credit (EITC). It considers how best to design child-claiming rules to achieve specific program goals, the foremost of which is supporting children’s well-being. This analysis illustrates that no single rule regime dominates for any given goal or goals. Rather, policymakers compromise between important objectives such as channeling benefits to children’s caregivers and providing flexibility to claimants’ households. Informed by a principle-driven framework, the Article considers how best to navigate these difficult tradeoffs and proposes specific child-claiming rules under several different benefit structures.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Mayer Presents What Is Caesar's, What Is God's: Fundamental Public Policy For Churches Today At San Diego

Lloyd Hitoshi Mayer (Notre Dame; Google Scholar) presents What is Caesar's, What is God's: Fundamental Public Policy for Churches, 44 Harv. J.L. & Pub. Pol'y 145 (2021), virtually at San Diego today as part of its Tax Law Speaker Series co-hosted with San Diego's Institute for Law and Religion:

Lloyd-mayerBob Jones University v. United States is a highly debated Supreme Court decision, both regarding whether it was correct and what exactly it stands for, and a rarely applied one. Its recognition of a “fundamental public policy doctrine” that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case, and Congress has shown no desire to change the underlying statutes to alter the case’s result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances.

The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than avoiding racial discrimination in education might qualify as fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case. The IRS has taken the position that churches are no different than any other tax-exempt organizations in this context, although it has only denied or revoked the tax-exempt status of a handful of churches based on this doctrine.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Aprill & Mayer: Tax Exemption Is Not A Subsidy — Except For When It Is

Ellen P. Aprill (Loyola-L.A.) & Lloyd Hitoshi Mayer (Notre Dame; Google Scholar), Tax Exemption Is Not a Subsidy — Except for When It Is, 172 Tax Notes Fed. 1887 (Sept. 20, 2021):

Tax Notes Federal (2020)In this report, Aprill and Mayer argue that there is no uniform answer to the question whether a tax exemption is a subsidy, and they urge policymakers and exempt organizations to note the distinctions when changes to laws or other guidance regarding exemption are under consideration.

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September 28, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Monday, September 27, 2021

Kleiman Presents Impoverishment By Taxation At UC-Irvine

Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar) presented Impoverishment by Taxation, 170 U. Pa. L. Rev. ___ (2022), virtually at UC-Irvine last Thursday as part of its Intellectual Life Workshop Series:

6606Viewed in the aggregate, the U.S. fiscal system is progressive, reduces inequality, and cuts poverty. The system improves on market outcomes by transferring income from rich to poor. Yet this bird’s eye view rings hollow on the ground, where millions of low-income taxpayers across the United States are made poor or poorer by paying their state and federal taxes. In truth, while the U.S. fiscal system may be broadly equalizing and poverty reducing, for many struggling households, it is impoverishing.

This Article offers a new way to measure taxation of low-income households in the United States, presenting a concept called fiscal impoverishment. Taxpayers are fiscally impoverished when they are made poor or poorer by paying state and federal taxes, after accounting for the offsetting cash or near-cash public benefits they receive. Distinct from the aggregate and anonymous measures by which we typically assess our tax and transfer system, fiscal impoverishment is dynamic and individualized. It highlights individual human dignity and implicates the economic responsibilities of the state vis-à-vis low-income taxpayers.

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September 27, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Kades Presents A New Feudalism: Selfish Genes, Great Wealth And The Rise Of The Dynastic Family Trust Today At Loyola-L.A.

Eric Kades (William & Mary; Google Scholar) presents A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust virtually today at Loyola-L.A. as part of its Tax Policy Colloquium.

KadesToday’s record levels of economic inequality are infecting our future as the top 0.01% bequest vast wealth to their descendants. With the death of the Rule Against Perpetuities (RAP), this inequality has the potential to harden social class lines not just for a generation or two but forever. Although it may sound implausible, interviews with estate lawyers serving very high net worth clients reveal that some of the wealthiest tier of testators are already exploiting the RAP’s elimination, along with a tax loophole, to establish dynasty trusts that will financially empower their bloodline as long as it continues.

Evolutionary biologists will not be surprised by this finding. Recent work in their field shows a universal and powerful human drive for high status descendants — a drive for “quality” progeny so powerful that it appears to trump the usual desire to maximize quantity of offspring. Coupled with the long history of dynastic family wealth in England, this science suggests that today’s wealthiest testators will utilize powerful modern legal institutions (e.g. well-developed laws of contract and trust; deep and efficient capital markets) to forge a new sort of trust that I dub a Dynastic Family Trust (DFT). These DFTs will be larded with innovative provisions leveraging a founder’s wealth to maximize descendants’ status for generation after generation.

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September 27, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Lesson From The Tax Court: Emotional Distress Is Not Physical Illness

Camp (2021)My dad practiced medicine for some 40 years as both a surgeon and family practitioner.  He raised us to believe that someone who did not have objectively detectable causes for their physical symptoms was not really ill: it was “all in their head.”  The medical term for that idea is “psychosomatic disorder.” 

The Tax Code makes the same distinction.  Section 104(a)(2) permits taxpayers to exclude damages recovered for objectively detectible physical injuries or physical sickness.   But they may not exclude damages received for a sickness that is simply “all in their head.”  The legal term for that idea is “emotional distress.” 

Rebecca A. Tressler v. Commissioner, T.C. Summ. Op. 2021-33 (Sept. 13, 2021) (Judge Greaves), teaches us that damages even for severe emotional distress are not excludable unless properly linked to a physical injury.  Ms. Tressler had sued her former employer, alleging a variety of wrongs.  One allegation was that the employer failed to prevent a physical assault by another employee.  Ms. Tressler claimed these wrongs had caused her emotional distress which, in turn, had caused various physical ailments. The employer settled.  Both the IRS and Tax Court denied a §104(a)(2) exclusion because the settlement language failed to properly link the payments she received to physical injuries she sustained; they were just linked to her claim for emotional distress.  It was all in her head.

It did not have to be this way.  I think we can learn from this case how to write better settlement agreements.

Details below the fold.

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September 27, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Sunday, September 26, 2021

The Top Five New Tax Papers

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

  1. SSRN Logo (2018) [516 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John Townsend (Houston)
  2. [363 Downloads]  Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument, by Yariv Brauner (Florida; Google Scholar)
  3. [324 Downloads]  Mega-IRAs, Mega-401(k)s, and Other Mega-Retirement Accounts: Statement for the Record, by Daniel Hemel (Chicago; Google Scholar) & Steven Rosenthal (Tax Policy Center)
  4. [292 Downloads]  State Aid Prohibition — The New GAAR in Town, by Joachim Englisch (Muenster)
  5. [178 Downloads]  New Puzzles In International Tax Agreements, by Wei Cui (British Columbia; Google Scholar)

September 26, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, September 24, 2021

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Has Cross-Border Arbitrage Met Its Match? By Mason & Saint-Amans

This week, Young Ran (Christine) Kim (Utah; Google Scholar) reviews a new work by Ruth Mason (Virginia; Google Scholar) and Pascal Saint-Amans (OECD), Has Cross-Border Arbitrage Met Its Match?, in Thinker, Teacher, Traveler: Reimagining International Tax. Essays in Honor of H. David Rosenbloom (Georg Kofler, Ruth Mason & Alexander Rust, eds., IBFD 2021), reprinted in the 41 Va. Tax Rev. 1 (2021).

Kim

Earlier this month, a group of international tax lawyers and policymakers got together to celebrate H. David Rosenbloom (Caplin & Drysdale, NYU)'s 80th birthday. The group spent two years secretly creating a Festschrift honoring Rosenbloom. The Festschrift is titled " Thinker, Teacher, Traveler: Reimagining International Tax. Essays in Honor of H. David Rosenbloom," edited by Georg Kofler (WU), Ruth Mason (Virginia), and Alexander Rust (WU) (IBFD 2021). Mason and Pascal Saint-Amans (OECD) contributed a chapter to the Festschrift titled, Has Cross-Border Arbitrage Met Its Match?, reprinted in the 41 Va. Tax Rev. 1 (2021). In their essay, Mason and Saint-Amans reviewed Rosenbloom’s criticisms of regulatory responses to international tax arbitrage, the academic response to those criticisms, and subsequent international cooperative efforts to curb international tax arbitrage. This review introduces their essay.

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September 24, 2021 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week's Virtual Tax Workshops

Monday, September 27: Eric Kades (William & Mary; Google Scholar) will present A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust virtually at Loyola-L.A. as part of its Tax Policy Colloquium. If you would like to attend, please RSVP here

Tuesday, September 28: Daniel Hemel (Chicago; Google Scholar) will present Law and the New Dynamic Public Finance virtually at NYU as part of its Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro.

Tuesday, September 28: Jacob Goldin (Stanford; Google Scholar) will present Whose Child is This? Improving Child-Claiming Rules in Safety Net Programs (with Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar)) virtually at UC-Hastings as part of its 2021 Tax Speaker Series. If you would like to attend, please contact Heather Field and Manoj Viswanathan.

Tuesday, September 28: Jeff Hoopes (North Carolina; Google Scholar) will present Tax Boycotts (with H. Scott Asay (Iowa Tippie College of Business; Google Scholar), Jacob Thorndock (BYU; Google Scholar) & Jaron Wilde (Iowa; Google Scholar)) virtually at Georgetown as part of its Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle

Wednesday, September 29: Chye-Ching Huang, Tabetha Peavey & Michael Kaercher (NYU Tax Law Center) will present Capital Gains and Transfer Tax Policy in the Build Back Better Act virtually at UC-Irvine as part of its Tax Policy Colloquium. If you would like to attend, please register here

Friday, October 1: Eleanor Wilking (Cornell) will present Does It Matter Who Remits? Evidence from U.S. States’ Voluntary Collection Agreements (with Yeliz Kaçamak (Boglaziçi University; Google Scholar) & Tejaswi Velayudhan (UC-Irvine; Google Scholar)) virtually at Florida as part of its Tax Policy Colloquium. If you would like to attend, please contact David Hasen

Friday, October 1: Jennifer Bird-Pollan (Kentucky; Google Scholar) will present Taxing the Ivory Tower: Evaluating the Excise Tax on University Endowments virtually at Boston College as part of its Tax Policy Collaborative. If you would like to attend, please contact James RepettiDiane Ring, or Shu Yi Oei

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September 24, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Tax Papers At Today's Junior Faculty Forum At Richmond

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

Blaine Saito (Northeastern), The Levels of Tax Coordination, 38 Ga. St. U. L. Rev. ___ (2022) (reviewed by Hayes Holderness (Richmond) here):

The United States implements much of its social policy through the income tax laws. The Code is rife with tax expenditures for education, housing, community economic development, retirement savings, and health care to name a few. But the IRS is not an agency with expertise in any of these areas and developing such expertise would draw resources away from its core tax administration mission. Commentators have thus called for a series of changes from turning these tax expenditures into outlays for these programs or to divest the IRS/Treasury of most of the administration of social policy tax expenditures. Yet, given American politics and the institutional structure of the federal government, these moves are both unlikely to occur and unwise.

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September 24, 2021 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Hemel: Not All Carryover Basis Regimes Are Created Equal

Daniel Hemel (Chicago; Google Scholar), Carry On with Carryover? Not All Carryover Basis Regimes Are Created Equal:

Congress ought to adopt the Biden administration’s proposal to tax unrealized gains over $1 million per person at death—full stop. But with the Biden administration’s sensible proposal now facing resistance from congressional Democrats, eyes are turning toward carryover basis as a compromise. One political advantage of carryover basis is that it’s very hard to brand carryover basis as a “death tax” (though well-funded opponents will no doubt try). In a carryover basis regime, death is a non-event for income tax purposes. You can say it’s a “death tax” just as you can say that an apple is a banana, but the statement would have little relationship to reality.

If Democrats decide to go down the carryover basis path, though, it matters which carryover basis regime they would be adopting. Not all carryover basis regimes are created equal. All conceivable carryover basis regimes would be better than the status quo, but some would be considerably better than others. ...

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September 24, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, September 23, 2021

Lipman Presents Tax Audits, Economics, And Racism Today At Indiana

Francine Lipman (UNLV; Google Scholar) presents Tax Audits, Economics, and Racism virtually at Indiana today as part of its Tax Policy Colloquium hosted by Leandra Lederman:

Francine-lipmanFunding and targeting IRS enforcement would not only pay for itself but would also provide enough tax revenue to finance remedies for debilitating social problems including ending homelessness, providing universally affordable quality childcare and rebuilding America’s infrastructure without any statutory tax law changes (Hanlon, 2019). Why has Congress moved in the opposite direction defunding the IRS causing reductions in enforcement over the last two decades from this economically sound and prudent move? Why is the IRS cutting back on tax enforcement of corporations and higher income taxpayers when the tax gap related to these taxpayers and the demonstrated return on these audits is much more significant than other audits? Why is the EITC which scholars have determined effectively pays for itself and contributes little to the tax gap excessively audited? Why are the only tax provisions categorized as improper payments tax provisions that disproportionately benefit households of color? Why are impoverished households of color effectively denied tax benefits with no meaningful recourse when wealthy white nonfilers owing billions of taxes aren’t even pursued? Why are poor households of color more likely to be targeted for audit than their white counterparts when more white households receive the EITC than households of color?

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September 23, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Roland Reviews Ten Thousand Years Of Inequality: The Archaeology Of Wealth Differences

Gerard Roland (Berkeley; Google Scholar), Review of Ten Thousand Years of Inequality: The Archaeology of Wealth Differences, 59 J. Econ. Lit. 1023 (2021) (reviewing Timothy A. Kohler (Washington State; Google Scholar) & Michael E. Smith (Arizona State; Google Scholar), Ten Thousand Years of Inequality: The Archaeology of Wealth Differences, University of Arizona Press (2018))

Ten-thousand-yearsArcheologists are actively working to quantitatively measure income and wealth inequality in ancient history based on available data, some of them being quite sophisticated. Timothy A. Kohler and Michael E. Smith’s Ten Thousand Years of Inequality: The Archaeology of Wealth Differences presents existing measurement efforts and insightful discussions of the challenges faced, on all continents except Oceania. These first exercises should help us over time understand better the evolution of inequality in ancient history and its determinants. Understanding better the effects of differences in institutions in the
ancient past should be a crucial next step.

Inequality has become a major theme in economics in recent years, in part with the publication of Thomas Piketty’s Capital in the Twenty-First Century, which came out in 2014 in its English translation. An important contribution to that debate was given by Walter Scheidel’s (2017) book on violence and the history of inequality. Apart from Scheidel’s thesis that throughout history, inequality was only reduced by wars, diseases, revolutions, and state collapse, economist readers like myself were surprised to find that archeologists had figured out ways to measure economic inequality in the very distant past. Thus, for example, one source of measurement of inequality is based on differences in material wealth found in graves and burial sites. Scheidel mentions discoveries from Sungir burial sites in the Pleistocene era from thirty thousand years ago in a society of hunters and foragers. One adult man was buried with three thousand beads made from ivory and other pendants and ivory rings. Some children had ten thousand ivory beads and many prestige items such as spears made of mammoth tusk and various art objects (p. 31). The distribution of grave goods on burial sites has been used to calculate Gini coefficients. What can we learn from archeology about inequality in ancient
times, its causes, and consequences?

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September 23, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, September 22, 2021

Mason & Knoll Present Unbundling Undue Burdens Today At UC-Irvine

Ruth Mason (Virginia; Google Scholar) & Michael Knoll (Penn) present Unbundling Undue Burdens virtually at UC-Irvine today as part of its Tax Policy Colloquium:

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

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September 22, 2021 in Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Davis Presents Tax Narratives: A Critical Tax Perspective On The Biden Tax Plan Today At Copenhagen

Tessa Davis (South Carolina) presents Tax Narratives: A Critical Tax Perspective on the Biden Tax Plan virtually at Copenhagen today as part of its Tax Colloquium:

DavisTax is storytelling. And the Biden Administration is elevating different narratives as it weaves its own story of the tax changes the country needs and how those changes will strengthen the fabric of American society.  As of August 2021, portions of the Administration’s proposals have become law.  Others face an uncertain path to enactment.  A rare bipartisan spirit emerged in the same month in the U.S. Senate’s passing of a significant infrastructure bill. But legislation to advance the Administration’s other goals—particularly tax changes and spending programs targeted toward benefiting low- and middle-income individuals and families—may be a harder lift. In “Tax Narratives: A Critical Tax Perspective on the Biden Tax Plan,” I situate the Administration’s proposals that aim to address childcare, healthcare, and education access within domestic and international contexts.

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September 22, 2021 in Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Tuesday, September 21, 2021

McCormack Presents The American Rescue Plan Act And Caregiving Today At UC-Hastings

Shannon Weeks McCormack (Washington) presents The American Rescue Plan Act and Caregiving: What Will (and Should) Come Next virtually at UC-Hastings today as part of its 2021 Tax Speaker Series hosted by Heather Field and Manoj Viswanathan:

Shannon-weeks-mccormackThe COVID-19 pandemic amplified and exemplified many of the inequities working parents have long faced in America, but which Congress has been historically reluctant to address in the Internal Revenue Code (the “Code”), and otherwise. I have chronicled this in a recently published Essay, Caregivers and Tax Reform: Before and After Snap Shots. Recently, however, Congress passed the American Rescue Plan Act (the “ARPA”), which provided a spate of temporary measures to benefit parents until (one can only hope) the dangers of the pandemic substantially subside. My current project seeks to place the relevant provisions of the ARPA in their historical context. While still in its infancy, in many ways this project will supplement (and I believe culminate) my previous work on the taxation of the family.

The ARPA has been considered by many to be a “monumental action” not only because of its fiscal impact (its price tag is $1.9 trillion dollars) but also because of the substantive moves it makes. As one commentator put it, “the American Rescue Plan has the potential to be the most effective social care package since the 1960s.” I agree. But such claims may obscure the historical mark a bit.

As someone who has studied the taxation of the family, including its history, the package of benefits provided to parents in the ARPA stunned me. 

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September 21, 2021 in Scholarship, Tax, Tax Workshops | Permalink

Pepin Presents A Permanently Refundable Child And Dependent Care Credit Today At Georgetown

Gabrielle Pepin (Upjohn Institute; Google Scholar) presents How Would a Permanently Refundable Child and Dependent Care Credit Affect Eligibility, Benefits, and Incentives? virtually at Georgetown today as part of its Tax Law and Public Finance Workshop:

Gabrielle_Pepin_2The federal Child and Dependent Care Credit (CDCC) subsidizes child care costs for working families. Before 2021, the CDCC was nonrefundable, so only families with positive tax liability after other deductions benefited. I estimate how CDCC eligibility, benefits, and marginal tax rates would change if the credit were made permanently refundable, relative to 2020 CDCC parameters set to be restored in 2022. Under refundability, some 5 percent of single parents gain eligibility and receive on average over $1,000 annually. Eligibility increases are largest among Black and Hispanic households. Increases in marginal tax rates among moderate-income taxpayers are small.

Conclusion
In this paper, I show that making the CDCC permanently refundable would increase eligibility and benefits among low-income taxpayers, who do not tend to benefit from other child care subsidy programs, such as dependent care FSAs. Furthermore, refundability would lead to particularly large increases in eligibility among Black and Hispanic households, which are relatively unlikely to qualify for the nonrefundable CDCC. Turning to intensive margin labor supply incentives, refundability would decrease marginal tax rates with respect to income among very-low-income taxpayers. Moderate-income taxpayers would experience small increases in marginal tax rates with respect to income but decreases in marginal tax rates with respect to child care expenditures.

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September 21, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Monday, September 20, 2021

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

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

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

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

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

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

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

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

Sunday, September 19, 2021

The Top Five New Tax Papers

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

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

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

Friday, September 17, 2021

Mason & Knoll Present Unbundling Undue Burdens Today At Florida

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

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

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

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

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

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

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

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

Next Week's Virtual Tax Workshops

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

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

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

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

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

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

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

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

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

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

Thursday, September 16, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Frye: Letter To The Yale Law Journal Forum

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

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

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

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

Wednesday, September 15, 2021

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

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

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

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

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

Hemel & Lord: Revitalizing The Generation-Skipping Transfer Tax

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

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

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

Submission Of Law Student Articles For Publication

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

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

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

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

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

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

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

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

Tuesday, September 14, 2021

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

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

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

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

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

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

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

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

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

Monday, September 13, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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