Paul L. Caron
Dean




Thursday, June 9, 2022

Am I Disabled? Disability Identity And Law Faculty

Katie R. Eyer (Rutgers; Google Scholar), Am I Disabled? Disability Identity and Law Faculty, 71 J. Legal Educ. __ (2022):

Journal of Legal Education (2022)This short Essay addresses the dilemmas of disability self-identification from the perspective of those who are ambiguously disabled, and calls on greater numbers of law faculty to situate themselves within, rather than outside, the disability community.

Conclusion
We have a long way to go before our law schools, and the wider legal profession, can be a truly welcoming space for people with disabilities. Currently, the best many law students with disabilities can hope for is for their accommodations to be smoothly granted, to find a few understanding professor allies, and, if they are lucky, to find community with other disabled law students. Casual bias, lower expectations, and struggles over accessibility remain a routine part of many law students’ law school experience. Out in the legal profession, those with visible disabilities are likely to face explicit bias in hiring, even as law firms purport to include disability among the categories of diversity that they value. And both within law schools and without, those with disabilities are likely to find that the structural norms of the profession celebrate exclusionary rituals of physical and mental stamina rather than value the strength and diversity of perspectives that those with nonnormative minds and bodies may bring.

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June 9, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Wednesday, June 8, 2022

Blank: Presidential Tax Transparency

Joshua D. Blank (UC-Irvine; Google Scholar), Presidential Tax Transparency, 40 Yale L. & Pol'y Rev. 1 (2021):

Whether the public should have access to the tax returns of the President of the United States, and those who seek the office, is the focus of acute attention and debate. President Donald Trump’s refusal to disclose his tax returns throughout his campaigns and presidency has fueled multiple legislative public disclosure proposals. In March 2021, the U.S. House of Representatives passed legislation as part of the For the People Act of 2021 that would require Presidents, Vice Presidents, and nominees to publicly disclose several years of their tax returns through the Federal Election Commission. Many state legislatures have considered similar requirements for candidates who seek to appear on state primary and general election ballots. Proponents of these measures argue that public disclosure of tax returns could expose conflicts of interest, reveal the President’s and candidates’ annual tax liability and tax rates, and, most importantly, enable the public to observe whether the President or candidates have engaged in tax evasion, pursued tax shelters and other tax avoidance, and participated in audits or tax controversies with the IRS.

This Article intervenes in the disclosure debate by exploring whether, and to what extent, mandatory public disclosure of tax returns would achieve the policy objective of enabling voters to observe candidates’ and elected officials’ compliance with the tax law.

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

Inoculating The Next Generation Of Lawyers: Mandating Substance Use And Mental Health Education For Law Students

Janet E. Stearns (Miami), Inoculating the Next Generation of Lawyers: Mandating Substance Use and Mental Health Education for Law Students, 61 U. Louisville L. Rev. __ (2022):

This articles reviews some of the major approaches for mandating an educational requirement for substance use and mental health education (SUMH) for law students, reviews some of the commonly used textbooks for Professional Responsibility and how they approach SUMH, and finally makes recommendations on best practices for SUMH education.

Conclusion
This article reflects my passionate commitment that law students would benefit from some fundamental and dedicated education around substance use and mental health challenges. This would alleviate and normalize some of the well-documented experiences that students have in law school, and also better prepare them for law practice following graduation. Addressing these issues are core elements of professional identity and deserve focused attention during the law school experience. In a perfect world, this would include (1) pre-orientation/orientation foundation, possibly in the form of an online module; (2) incorporating these topics into all required PR classes; (3) ensuring that all professional identity touchpoints have information on essential resources around SUMH including the LAPs in each jurisdiction; (4) some end of study certification to the bar or MPRE testing to signal the core importance of these topics.

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

Estate And Gift Tax Valuation Of Cannabis Business Interests

Jonathan G. Blattmachr (Milbank), Bridget J. Crawford (Pace; Google Scholar) & Mitchell M. Gans (Hofstra), Estate and Gift Tax Valuation of Cannabis Business Interests, 161 Tr. & Est. 22 (Jan. 2022):

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

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

Tuesday, June 7, 2022

Bearer-Friend: Tax Without Cash

Jeremy Bearer-Friend (George Washington; Google Scholar), Tax Without Cash, 106 Minn. L. Rev. 953 (2021):

Minnesota Law Review (2021)This Article documents and evaluates tax obligations paid without cash, referred to as “in-kind tax paying.” Such forms of tax paying include paying federal income taxes by remitting a used flatbed truck to the IRS, paying local property taxes by working a few hours a month answering phones at city hall, and paying state excise taxes by conveying a proportion of all seashells farmed within a state to that state. These are not just hypotheticals, but forms of in-kind tax paying that occur in the United States throughout periods when many taxes are also paid in cash. Nevertheless, despite its long history and prevalence, in-kind tax paying has been underexplored as a viable, and potentially appealing, form of tax remittance.

By providing an original taxonomy of in-kind tax paying within a cash economy, this Article makes three contributions. 

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June 7, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Sanchirico: Should A Global Minimum Tax Be Country-By-Country?

Chris William Sanchirico (Penn; Google Scholar), Should a Global Minimum Tax be Country-by-country?

The OECD has proposed implementing a global minimum tax, and the US already has in place one version of such a regime in the form of GILTI. A key design choice in the imposition of a global minimum tax is whether the minimum should be tested on a country-by-country basis or on the basis of an MNE's global average tax rate. The consensus view appears to be that a country-by-country approach is superior because, first, it raises more revenue and, second, it is more effecting at controlling harmful tax competition. This paper challenges those assertions. It presents a simple game-theoretic analysis suggesting that a global averaging approach is superior in both respects.

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June 7, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, June 6, 2022

Virginia Tax Review Publishes New Issue

Virginia Tax Review (2016)The Virginia Tax Review has published Vol. 40, No. 3 (Spring 2021):

Hayes R. Holderness (Richmond), Changing Lanes: Tax Relief for Commuters, 40 Va. Tax Rev. 453 (2021) (reviewed by Young Ran (Christine) Kim (Utah, moving to Cardozo; Google Scholar) here):

Tax law reaches all parts of life, and societal expectations about life’s activities often affect how the law is applied. As those expectations change, application of the law should be expected to change in turn. This Essay highlights changing societal views about commuting, particularly as a result of the COVID-19 pandemic, to demonstrate how even long-standing positions under the tax law can be quickly uprooted. Specifically, as working from home becomes standard, taxpayers should be afforded tax relief when required to commute into the workplace, despite the fact that the tax law traditionally has rejected such relief.

Grayson M. P. McCouch (Florida), Custodianships, Trusts, and Guardianships, 40 Va. Tax Rev. 475 (2021):

 

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June 6, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Liscow: Redistribution For Realists

Zachary Liscow (Yale; Google Scholar), Redistribution For Realists, 107 Iowa L. Rev. 495 (2022):

Iowa Law Review 2 (2022)Inequality is a defining issue of our time. Nevertheless, the longstanding economic orthodoxy for addressing inequality is that we should redistribute solely through tax and transfer policies because those are the most efficient means for doing so.

While the orthodoxy holds in theory, it fails in practice because of the public’s psychology about redistribution. New evidence shows that individuals silo their policy views: many are reluctant to redistribute through taxes and transfers but are willing to do so in other policy domains, like provision of necessities such as transportation, food, and housing. The orthodoxy thus restricts redistribution efforts to a policy domain where the public resists redistribution while neglecting the many policy domains where the public embraces redistributive policies. The current orthodoxy may be more efficient, but it is also a prescription for widespread inequality.

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June 6, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Lesson From The Tax Court: Taxpayer Held To His Word(s) Regarding Alimony

Camp (2021)Congress eliminated the deduction for alimony in the December 2017 Reconciliation Act (informally called the Tax Cuts and Jobs Act, or TCJA).  The concept is still important, however.  First, the legislation grandfathered in alimony payments made pursuant to divorce or separation instruments executed on or before December 31, 2018.  So the question of whether a payment qualifies as alimony will thus still be important for many taxpayers for years to come.  Second, the definition continues to play an important role in analyzing the support requirements for dependents.  See §152(d)(5).

Determining whether payments constitute alimony is not always easy and errors can lead to §6662 penalties for careless taxpayers and their advisors.  Jihad Y. Ibrahim v. Commissioner, T.C. Summ. Op. 2022-7 (May 16, 2022) (Judge Weiler), teaches us the importance of the words used in divorce instruments. There, Dr. Ibrahim sought to deduct $50,000 in payments to his ex-wife.  He called them as alimony on his return.  But the marital separation agreement and the divorce decree did not call them that.  The IRS disallowed the deduction as contrary to the plain language in the divorce decree.  Despite Dr. Ibrahim’s ingenious arguments, the Tax Court agreed with the IRS and held the taxpayer to his word(s).  Details below the fold.

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June 6, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

Sunday, June 5, 2022

The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper and new papers joining the list at #3, #4, and #5:

  1. SSRN Logo (2018) [417 Downloads]  Taxing Robots, by Rita de la Feria (Leeds; Google Scholar) & Maria Amparo Grau Ruiz (Universidad Complutense de Madrid; Google Scholar)
  2. [400 Downloads]  A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, by Andrew Granato (J.D.|Ph.D., Yale; Google Scholar)
  3. [300 Downloads]  Taxation and the Knowledge Economy, by Alan Kirkpatrick (Bournemouth) & Anne Fairpo (Bournemouth)
  4. [296 Downloads]  Filing While Black: The Casual Racism Of The Tax Law, by Steven Dean (Brooklyn)
  5. [221 Downloads]  The Use of New Technologies in VAT and Taxpayers’ Rights, by Marta Papis-Almansa (Copenhagen)

June 5, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, June 3, 2022

Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Stanley Surrey's Memoirs Edited By Zelenak & Mehrotra

This week, Tracey Roberts (Cumberland; Google Scholar) reviews A Half Century with the Internal Revenue Code, The Memoirs of Stanley S. Surrey (Carolina Academic Press 2022), edited by Lawrence A. Zelenak (Duke) and Ajay K. Mehrotra (Northwestern; Google Scholar).

Roberts (2020)

Stanley Surrey devoted five decades to shaping and elucidating the structures of the income tax, to decrying its use as a mechanism to grant unwarranted financial favors to select interest groups, and to training generations of students and lawyers for leadership in government, in academia, and in private practice in the U.S. and internationally. Surrey served as an advisor and Tax Legislative Counsel to the Department of Treasury from 1937 to 1947, as the Assistant Secretary of the Treasury from 1961 to 1969, and as a professor of law at the University of California, Berkeley School of Law and at Harvard Law School, where he founded the International Tax Program. Surrey saw himself as an activist scholar. In their introduction to their edited edition of Surrey’s memoirs, Larry Zelenak and Ajay Mehrotra survey Surrey’s extraordinary career as largely one of unified thought and action in service to fairness, equity, the integrity nation’s tax system, and its effectiveness in securing the federal fisc. 

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June 3, 2022 in Scholarship, Tax, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Cauble: Questions The IRS Will Not Answer

Emily L. Cauble (DePaul; moving to Wisconsin), Questions the IRS Will Not Answer, 97 Ind. L.J. 523 (2022) (reviewed by Sloan Speck (Colorado; Google Scholar) here): 

Indiana Law JournalWhen a taxpayer plans to undertake a transaction and its tax consequences are unclear, the taxpayer can request a letter ruling from the IRS. The IRS issues numerous letter rulings each year. In 2020, for instance, the IRS issued 777 letter rulings. The IRS refrains from issuing letter rulings on certain topics. At the beginning of each year, the IRS publishes an updated list of the topics on which it will not rule. Many of the topics on which it will not rule arise in areas of tax law governed by standards where the tax outcome depends heavily on each transaction’s specific facts. This pattern is consistent with the IRS’s stated position that it ordinarily does not rule in certain areas because of the factual nature of the matter involved.

This Article suggests that a policy against ruling on fact-specific topics sacrifices an opportunity to rule on many of the very topics for which a letter ruling could be particularly useful. Because the fact-specific nature of a topic makes it ill-suited for generally applicable guidance, such a topic is a particularly good candidate for a letter ruling.

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

Thursday, June 2, 2022

Adding More Sharks To The Shark Tank: Strategies For Hiring More Law Professors In Business Schools

David Nows (Central Michigan; Google Scholar), Adding More Sharks to the Shark Tank: Strategies for Allowing More Attorneys to Access Academia in Business Schools, 66 How. L.J. __ (2022):

Shark TankBecoming a law professor in a law school has become a difficult endeavor. For most candidates, the roughly 50% reduction in open positions over the past decade is discouraging. In addition, nearly all successful candidates have completed another competitive credential in addition to their J.D. degree, like a federal clerkship, an advanced degree, or a faculty fellowship at a law school. The degree of difficulty attached to becoming a law professor is likely to drive away many stellar candidates, even those candidates that dislike legal practice and are actively seeking an alternative.

However, there is another home for some of these aspiring scholars that is often unexplored: becoming faculty within a business school.

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June 2, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Wednesday, June 1, 2022

National Tax Association 115th Annual Conference Call for Papers: June 6 Deadline

NTA

National Tax Association 115th Annual Conference Call for Papers:

The 115th Annual Conference on Taxation will be held at the JW Marriott Marquis Miami, in Miami, Florida. The conference will cover a broad range of topics in tax policy and public finance. We welcome submissions from the fields of accounting, economics, law, and public policy and administration, as well as research from other fields that bears on these topics.

This year’s conference agenda is being framed by recent significant developments: the impact of COVID-19 on the economy, the rise of inflation, climate change, ESG, and continuing activity within the OECD towards fundamental changes in international tax. We especially encourage submissions in line with these topics.

You are invited to submit the following: individual papers to be integrated into sessions, proposals for complete sessions of papers, and proposals for panel discussions. Please note that full session proposals are mere suggestions of groupings. The conference committee reserves the right to consider and accept individual papers from a complete session rather than accepting the complete session. Submitters of complete sessions are required to enter abstracts for each paper in the session.

The submission deadline is June 6, 2022.

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June 1, 2022 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Tuesday, May 31, 2022

Schmalbeck & Soled: Substance Over Form In Transfer Tax Adjudication

Richard Schmalbeck (Duke) & Jay A. Soled (Rutgers; Google Scholar), Substance Over Form In Transfer Tax Adjudication, 55 Loy. L.A. L. Rev. 609 (2022):

The elevated exemption level under the federal transfer tax system (now in excess of $24 million for a married couple) has opened up new and abusive tax-avoidance opportunities. In many areas of the tax law, the substance over form doctrine historically has been effective in controlling such abuses; however, for a myriad of reasons, transfer tax jurisprudence has been marred by the reluctance of courts to embrace this doctrine. In this analysis, we urge reconsideration of that posture.

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May 31, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Lesson From The Tax Court: The Sharp Corners Of The §170 Substantiation Requirements

Camp (2021)The sainted Justice Holmes once wrote:  “Men must turn square corners when they deal with the Government.”  It is no accident that Justice Holmes wrote that in a tax case.  Rock Island R.R. v. United States, 254 U.S. 141, 143 (1920).  Of all the corners in all the laws governing citizen interaction with government, tax laws contain some of the squarest.  This is a lesson we’ve seen before.  See Lesson From The Tax Court: The Structure Of Substantiation Requirements of §170, TaxProf Blog (Sept. 24, 2018).  But I think it’s a lesson worth repeating: the substantiation rules in §170 contain some very sharp corners.  The lesson is important for high-end donations such as the one in today’s case.  And it is not just a lesson for taxpayers, but also for charities.

In Martha L. Albrecht v. Commissioner, T.C. Memo. 2022-53 (May 25, 2022) (Judge Greaves), the taxpayer made a very large donation to a museum and claimed a §170 charitable donation deduction on her return.  The IRS said that the 5-page document memorializing the gift did not meet the statutory substantiation requirements for such a gift.  The Tax Court agreed.  Thus, no §170 deduction.  Details below the fold.

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May 31, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

The Bluebook: 2021 v. 1976

Robert A. James (Pillsbury, San Francisco), The Bluebook Nods, 24 Green Bag 2d 335 (2021): 

Bluebook 2Generations of law students have been required to master A Uniform System of Citation, also known as the Bluebook, to pass legal writing classes or progress in coveted law review positions. A long-time practitioner compares the 2021 and 1976 versions of the manual and offers two sets of comments. First, no one should expect perfect compliance with the Bluebook inasmuch as the Bluebook itself occasionally falls short of its aspirations and ideals. Second, a blanket rule that a mathematical formula should be italicized in its entirety reveals ignorance and disrespect for the substantive content of scientific typography. The author concludes that any system of citation should honor the distinctive features of each cultural community to which reference is made—whether linguistic, musical, or technical. ...

In any work with serious application of mathematics to legal issues, though, the Bluebook should defer to the standards of the relevant discipline. The formula option in word processing applications automatically applies the above italic and roman rules, and can be used to notate vectors; at a minimum, articles certainly should not disturb what these programs produce. If this means that law review editors lacking mathematical numeracy must defer to other experts or (horrors) to the authors who have such skills, so be it. They and we should not simply italicize an entire formula to appear vaguely scientific.

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May 31, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Monday, May 30, 2022

Professional Sports Teams In High-Tax States Are At A Competitive Disadvantage

Erik Hembre (University of Illinois-Chicago; Google Scholar), State Income Taxes and Team Performance, 29 Int'l Tax & Pub. Finance 704 (2022):

Professional athletes are both highly paid and highly mobile workers. Previous research has shown that athletes respond to state income taxes differentials through bargaining and migration. If athletes are compensated for state tax burden, teams located in higher taxed states may be at a competitive disadvantage. I examine the effect of state income taxes on professional sports team performance. Using within-team variation in state top marginal income tax rates, I show that, only after the availability of free agency, did state income tax increases lower team winning percentages. I find that for each percentage point increase in state income tax rates, team winning declines by 0.70 percentage points.

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May 30, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Using Artificial Intelligence In The Law Review Submissions Process

Brenda M. Simon (California Western; Google Scholar), Using Artificial Intelligence in the Law Review Submissions Process, 56 U.C. Davis L. Rev. ___ (2022):

UC Davis Law ReviewThe use of artificial intelligence to help editors examine law review submissions may provide a way to improve an overburdened system. This Article is the first to explore the promise and pitfalls of using artificial intelligence in the law review submissions process.

Technology-assisted review of submissions offers many possible benefits. It can simplify preemption checks, prevent plagiarism, detect failure to comply with formatting requirements, and identify missing citations. These efficiencies may allow editors to address serious flaws in the current selection process, including the use of heuristics that may result in discriminatory outcomes and dependence on lower-ranked journals to conduct the initial review of submissions. Although editors should not rely on a score assigned by an algorithm to decide whether to accept an article, technology-assisted review could increase the efficiency of initial screening and provide feedback to editors on their selection decisions. Uncovering potential human bias in the selection process may encourage editors to develop ways to minimize its harmful effects.

Despite these benefits, using artificial intelligence to streamline the submissions process raises significant concerns.

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May 30, 2022 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink

Sunday, May 29, 2022

The Top Five New Tax Papers

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

  1. SSRN Logo (2018) [544 Downloads]  How Treasury and the IRS Have Allowed High-Net-Worth Taxpayers to Exploit Stepped-Up Basis on Intergenerational Wealth Transfers, and How They Can Stop It: Answers to Question for the Record, by Daniel Hemel (Chicago; moving to NYU; Google Scholar)
  2. [408 Downloads]  Taxing Robots, by Rita de la Feria (Leeds; Google Scholar) & Maria Amparo Grau Ruiz (Universidad Complutense de Madrid; Google Scholar)
  3. [386 Downloads]  A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, by Andrew Granato (J.D.|Ph.D., Yale; Google Scholar)
  4. [371 Downloads]  Permanent Establishment and Fixed Establishment in the Context of the Subsidiary and the Digital Economy, by Stoycho Dulevski (University of National and World Economy; Google Scholar)
  5. [229 Downloads]  Digital Assets: A Call To Action, by Johan David Michels (Queen Mary University of London; Google Scholar), Sharon Hartung (Technologist & Founder, Your Digital Undertaker) & Christopher Millard (Queen Mary University of London)

May 29, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, May 27, 2022

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Dean's The Casual Racism Of The Tax Law

This week, Young Ran (Christine) Kim (Utah, moving to Cardozo; Google Scholar) reviews a new work by Steven A. Dean (Brooklyn), Filing While Black: The Casual Racism of the Tax Law, 2022 Utah L. Rev. __.

Kim

In response to a growing recognition of the absence of demographic data in federal datasets, including tax data, President Biden signed Executive Order 13985 in 2021, which, inter alia, established an Interagency Working Group on Equitable Data. The Treasury Department is also undertaking a comprehensive research initiative to study the relationship between the U.S. tax code and racial inequities. Senate Finance Committee Chair Ron Wyden (D-OR) has called for the IRS to collect and disclose more information relating to the tax code’s effect on different demographics because it makes no sense to blind lawmakers to the key data that would illuminate injustice in our tax laws. Those recent developments are the results of hard work by dedicated scholars like Alice Abreu, Jeremy Bearer-Friend, Dorothy Brown, Wei Cui, Steven Dean, Francine Lipman, and Goldburn Maynard. In this review, I would like to recognize Steven Dean's recent essay, Filing While Black: The Casual Racism of the Tax Law, 2022 Utah L. Rev. ___. Dean's essay is adapted from his testimony given before the Committee on Ways and Means of the U.S. House of Representatives on June 10, 2021, and was presented at the 2021 Utah Law Review Symposium, entitled #includetheirstories: Rethinking, Reimagining, and Reshaping Legal Education, for which I was an organizer. (Video clips are available here.)

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May 27, 2022 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Avi-Yonah Posts International Tax Papers On SSRN

Thursday, May 26, 2022

No New Tax Cuts? Examining The Rescue Plan's New State Tax Limits

Conor Clarke (DOJ; Google Scholar) & Edward G. Fox (Michigan; Google Scholar), No New Tax Cuts? Examining the Rescue Plan's New State Tax Limits, 103 Tax Notes St. 1361 (Mar. 28, 2022):

Tax-notes-stateIn this article, Clarke and Fox examine the American Rescue Plan Act’s restrictions on state tax cuts, arguing that the restrictions are a variation on more familiar maintenance-of-effort provisions. These provisions are common, and are designed to help ensure that federal grants supplement rather than supplant state spending by requiring the state to maintain its level of spending on a program. Clarke and Fox conclude that the Rescue Plan’s requirements create similar incentives, and argue that the similarity makes it more likely that the act’s tax provisions are consonant with the Constitution’s spending clause.

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

Cooper: Section 2058 And The Decline Of State Death Taxes

Jeffrey A. Cooper (Quinnipiac; Google Scholar), Death by Deduction: Section 2058 and the Decline of State Death Taxes, 48 ACTEC L.J. __ (2023):

This article illustrates how, and seeks to explain why, the deduction for state estate taxes (Internal Revenue Code Section 2058) seems to have had no meaningful effect on state tax policy.

Since the deduction for state estate taxes reduces the amount of federal estate taxes paid, the net effect is to shift to the federal government some of the cost of these state death taxes. Prevailing theories of tax policy suggest that state governments will structure their tax systems to maximize this type of available deduction. But theory has not borne out in practice. To the contrary, most states have responded to enactment of Section 2058 not by restructuring their existing state estate taxes to maximize this federal deduction but rather by entirely abandoning state estate taxes. While a remaining group continue to impose those taxes, they have failed to structure those taxes in a manner that would optimize the deduction. In short, the 2058 deduction seems to have had extremely little, or perhaps entirely no, effect on state estate tax policy.

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

Wednesday, May 25, 2022

8th Annual Mid-Career Tax Professors Workshop At North Carolina

UNC Law School Logo

Tuesday, May 24:

Panel #1:

Ari Glogower (Ohio State; Google Scholar), Means-Adjusted Tax Rules
Commentator:  Philip Hackney (Pittsburgh)

Susan Morse (Texas; Google Scholar), APA Statute of Limitations
Commentator:  Clint Wallace (South Carolina)

Andrew Hayashi (Virginia; Google Scholar), Income Tax Enforcement & Redistribution: A Survey
Commentator:  Shu-Yi Oei (Boston College; Google Scholar

Brian Galle (Georgetown; Google Scholar), Solving the Valuation Challenge: A Feasible Method for Taxing Extreme Wealth (with David Gamage (Indiana-Maurer; Google Scholar) & Darien Shanske (UC-Davis; Google Scholar))
Commentator:  Andrew Hayashi (Virginia; Google Scholar)

Panel #2:

Yariv Brauner (Florida; Google Scholar), What Should Developing Countries do about the Recent Global Minimum Tax "Agreement"?
Commentator:  Young Ran (Christine) Kim (Utah, moving to Cardozo; Google Scholar)

Shuyi Oei (Boston College; Google Scholar), What Determines Treaty Favorability to Developing Countries?
Commentator: Susan Morse (Texas; Google Scholar)

Doron Narotzki (Akron; Google Scholar), Tax Planning and Pillar Two
Commentator: Yariv Brauner (Florida; Google Scholar)

Panel #3:

Jordan Barry (USC), Tax & the Boundaries of the Firm (with Victor Fleischer (UC-Irvine; Google Scholar))
Commentator: Doron Narotzki (Akron; Google Scholar)

Manoj Viswanathan (UC-Hastings), Hybrid Tax Bases & the Constitution
Commentator: Ari Glogower (Ohio State; Google Scholar)

Emily Cauble (DePaul), Testing Intuitions About Partnership Tax Intuitions
Commentator: Leigh Osofsky (North Carolina; Google Scholar)

Panel #4:

Stephanie Hoffer (Indiana-McKinney; Google Scholar), Language of Disability in the Tax Code
Commentator: Kathleen DeLaney Thomas (North Carolina; Google Scholar)

Kathleen DeLaney Thomas (North Carolina; Google Scholar), Fake News & the Tax Law
Commentator: Emily Cauble (DePaul)

Leigh Osofsky (North Carolina; Google Scholar), Implicit Leg Bias & the HMID
Commentator: David Gamage (Indiana-Maurer; Google Scholar)

Wednesday, May 25:

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May 25, 2022 in Conferences, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

CIC Services: The Supreme Court Hands The IRS A Major Loss

Beckett Cantley (Northeastern) & Geoffrey Dietrich (Cantley Dietrich), CIC Services v. IRS: the Supreme Court Hands the IRS a Major Loss, 5 Bus. Entrepreneurship & Tax L. Rev. __ (2021):

The Anti-Injunction Act (“AIA”) is an important part of administrative procedure law and a crucial piece of the United States tax system. Enacted to help expedite the tax revenue process, the Act works to invalidate any lawsuit to restrict the assessment or collection of taxes. Nonetheless, having the power to bar standing and having the right to do so are two completely different things. For instance, while the AIA gives the power to bar suits brought against administrative rulemaking processes, the Act does not give this right unless the suit was brought with the purpose of restraining the assessment of a tax.

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

How To Engage Law Students In The Online Learning Environment

Andrele Brutus St. Val (Pittsburgh), Survey Says—How to Engage Law Students in the Online Learning Environment, 70 J. Legal Educ. __ (2021):

Journal of Legal Education (2022)The pandemic experience has made it clear that not everyone loves teaching or learning remotely. Many professors and students alike are eager to return to the classroom. However, our experiences over the last year and a half have also demonstrated the potentials and possibilities of learning online and have caused many professors to recalibrate their approaches to digital learning. While the tools for online learning were available well before March of 2020, many instructors are only now beginning to capitalize on their potential. The author of this article worked in online legal education before the pandemic, utilizing these tools and exploring ways to make the online experience more effective. This article is the result of her research on online legal education prior to the pandemic, which sheds light on future possibilities for online learning in law schools in post-pandemic times. 

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

Google's Cost Sharing Arrangement: Bride Of Frankenstein

Stephen Curtis (Cross Border Analytics), Google's Cost Sharing Arrangement: Bride of Frankenstein:

Google (2022)This paper performs a forensic analysis of Google's transfer pricing cost sharing arrangement based on forensic economic analysis of public information, including tax litigation in France, tax hearings conducted in the United Kingdom, information from a related U.S. tax court case, documents disclosed in a European data privacy investigation, published materials containing insider accounts of Google’s operations, books, periodicals and other sources. The paper finds that Google appears to have violated U.S. transfer pricing laws in 2009 and later years, in ways that appear to have invalidated its cost sharing arrangement but which were not detected by the IRS. These tax violations appear to have led to the potential of tax assessments by the IRS of more than $38 billion and up to $50 billion. Google is now a subsidiary of Alphabet Inc., and the company's reserves for Uncertain Tax Positions were $3.8 billion as of December 31, 2020 – reserves that are about 90% less than this tax adjustment risk. The ability of the IRS to apply periodic adjustments is not limited by any statute of limitations.

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

Tuesday, May 24, 2022

Saito: Tax Allyship

Blaine G. Saito (Northeastern; Google Scholar), Tax Allyship, 1 LSU L.J. for Soc. Just. & Pol'y 49 (2022):

Tax has a race problem. The tax system’s traditional color-blind approach only ossifies our existing structures of racial hierarchy. The solution, then, is to abandon the color-blind approach and introduce reform to explicitly help combat the inequities in wealth and income that fall along racial lines. 

This essay calls on young lawyers and racial-justice activists to pressure the tax field—scholars, legislators, practitioners, and judges—to do better. I hope, especially, to inspire law students to consider taking tax courses and becoming tax lawyers with an eye toward promoting racial justice both within and outside the field.

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May 24, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

The Constitutionality Of Required Faculty Diversity Statements

Brian Soucek (UC-Davis; Google Scholar), Diversity Statements, 55 U.C. Davis L. Rev. 101 (2022):

UC Davis Law ReviewUniversities increasingly require ‘diversity statements’ from faculty seeking jobs, tenure, or promotion. But statements describing faculty’s contributions to diversity, equity, and inclusion are also increasingly under attack. Criticisms first made in tweets and blog posts have expanded into prominent opinion pieces and, more recently, law review articles. And the attacks are having an effect. Within universities, faculty-wide resolutions for and against mandatory diversity statements have been called and academic freedom committees have been asked to intervene. Outside universities, lawyers are recruiting plaintiffs to challenge diversity statement requirements in court.

Behind all the rhetoric, the arguments made about diversity statements are, at heart, legal claims — and serious ones at that. Critics allege that universities are engaging in unconstitutional viewpoint discrimination, violating their faculty’s academic freedom, and imposing political litmus tests akin to the loyalty oaths struck down during the Cold War era.

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

Spivack: The Happy Families Of Tax Law

Carla Spivack (Oklahoma City), The Happy Families of Tax Law, 100 N.C. L. Rev. 601 (2022): 

This Article points to the difference between the treatment of wealthy families and poor families who apply for tax benefits and argues that the same treatment should apply to both. I show that tax breaks for the wealthy and benefits for the poor are both government expenditures that deplete the public fisc; indeed, some have called tax benefits for the rich “hidden” or “submerged” forms of welfare. Yet, as I discuss, the law treats wealthy applicants for tax breaks quite differently from the way it treats poor people applying for similar benefits. The wealthy receive tax breaks based on assumptions about their family dynamics, without any inquiry into the dynamics in a particular family. By contrast, poor people applying for benefits face scrutiny of their intimate lives, relationships, and spaces to establish eligibility. In essence, this Article argues that what’s sauce for the goose is sauce for the gander.

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May 24, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

The Pro Bono Penalty: Extracurricular Activities And Demographic Disparities In Bar Exam Success

Christopher Birdsall (Boise State) & Seth Gershenson (American; Google Scholar), The Pro Bono Penalty: Extracurricular Activities and Demographic Disparities in Bar Exam Success:

Demographic disparities in bar exam pass rates are problematic but poorly understood. We investigate a possible explanation: participation in extracurricular activities, which could either distract from bar exam preparation or motivate and prepare students to succeed. Generally, participation in extracurricular activities while in law school does not play a large role in bar exam success. However, there is a significant, arguably causal, penalty associated with one particular activity—pro bono work—most notably in lower-ranked law schools. This penalty is sizable: pro bono work is associated with a 5 percentage point (6%) decrease in the chances of passing the bar exam on the first attempt. This penalty is largest for Black and female students and may explain as much as 20% of the Black-white gap in first-attempt bar pass rates.

Pro Bono

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

Monday, May 23, 2022

Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(k) Participants

Edward Zelinsky (Cardozo), Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments to 401(k) Participants, 54 Conn. L. Rev. 509 (2022):

Whether 401(k) plans’ investment menus should feature “alternative” investments is a fact-driven inquiry applying ERISA’s fiduciary standards of prudence, loyalty, and diversification. Central to this fact-driven inquiry is whether the alternative investment class in question is broadly accepted by investors in general and by professional defined benefit trustees in particular. A similarly salient concern when making this inquiry is the financial unsophistication of many, perhaps most, 401(k) participants. Accounting for these considerations, this Article concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but that cryptocurrencies (including Bitcoin), art, and environmental-social-governance (ESG) funds cannot. These latter investment categories have yet to achieve acceptance among professional defined benefit trustees and thus are not yet prudent to offer to 401(k) participants—if they ever will be. 

This Article explores each of these five categories as a class. Even if 401(k) participants should be offered choices within any (or all) of these classes of alternative investments, particular investments within each class must still be scrutinized individually for their compliance with ERISA’s fiduciary standards. The threshold, fact-intensive question that this Article addresses is whether, before considering specific investments, any generic category of alternative investments ought to be considered for the menu of choices offered to 401(k) participants. 

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May 23, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Lesson From The Tax Court: Counting The Days

Most people know that the IRS generally has three years to audit a return. Calculating the proper three-year period, however, requires close attention to both the start date and the end date.  You need to count those days properly.  I tried to drill into my students the practice of always consulting a calendar when attempting to calculate the proper dates.  Christian Renee Evert v. Commissioner, T.C. Memo. 2022-48 (May 9, 2022) (Judge Marshall), reinforces that teaching: to calculate the period in which the IRS can assess a tax, you need to properly count the days in the three year period.

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May 23, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

Sunday, May 22, 2022

Christianity And Constitutional Law

Nicholas Aroney (TC Beirne School of Law, University of Queensland; Google Scholar), Christianity and Constitutional Law:

Christianity and ConstitutionalismThis paper, written for the forthcoming Oxford Handbook on Christianity and Law, edited by John Witte and Rafael Domingo, explores the influence of Christianity on constitutional law. The paper begins by pointing out that modern constitutional law is the product of several important historical influences. These include elements of Greek philosophy, Roman law, Christian theology, and Enlightenment principles. Greek philosophy proposed a classification of the basic types of constitution and introduced the idea of the rule of law. Roman law contributed the legal concept of jurisdiction, which is an essential feature of contemporary constitutional law. Christian theology offered a conceptual framework in which the authority of civil government was effectively qualified by a higher natural or divine law, and in which the spiritual authority of the church posed a practical limit on the temporal powers of the civil authority. Christian theology also provided the context in which the powers of civil and ecclesiastical rulers were tempered through various means, including the administration of oaths of office and the issuing of charters guaranteeing the rights of religious, social, economic, and civil associations of many kinds. The principle of the separation of powers and the establishment of written constitutions enforced by judicial review, although associated with the Enlightenment, also owed a great deal to these earlier principles and practices. The paper surveys the contribution of each of these influences and argues that although the Greek, Roman, and Enlightenment contributions have been important, constitutional law would not be what it is today if it were not for the influence of Christianity.

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May 22, 2022 in Book Club, Faith, Legal Education, Scholarship | Permalink

The Top Five New Tax Papers

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

  1. SSRN Logo (2018) [521 Downloads]  How Treasury and the IRS Have Allowed High-Net-Worth Taxpayers to Exploit Stepped-Up Basis on Intergenerational Wealth Transfers, and How They Can Stop It: Answers to Question for the Record, by Daniel Hemel (Chicago; moving to NYU; Google Scholar)
  2. [397 Downloads]  Taxing Robots, by Rita de la Feria (Leeds; Google Scholar) & Maria Amparo Grau Ruiz (Universidad Complutense de Madrid; Google Scholar)
  3. [370 Downloads]  A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, by Andrew Granato (J.D.|Ph.D., Yale; Google Scholar)
  4. [358 Downloads]  Permanent Establishment and Fixed Establishment in the Context of the Subsidiary and the Digital Economy, by Stoycho Dulevski (University of National and World Economy; Google Scholar)
  5. [320 Downloads]  Where Nonprofits Incorporate and Why It Matters, by Peter Molk (Florida; Google Scholar)

May 22, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, May 20, 2022

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews AI, Taxation, And Valuation By Soled And Thomas

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Jay Soled (Rutgers; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), AI, Taxation, and Valuation, 108 Iowa L. Rev. __ (2023).

Mirit-Cohen (2018)

Artificial intelligence (AI) is improving our lives by utilizing technology and machine learning to accomplish tasks that require considerable human labor. It can deliver similar and often better outcomes in a cost-effective manner. I have written here that calculative actions do not require much creativity thus are the most obvious fields in which machines are superior to humans. It is very fitting to ask, then, how can AI improve tax enforcement and compliance? Valuation is one of the most calculative and arduous areas in tax administration that automation can greatly improve. 

Valuation often requires many efforts determining fair market value (FMV) when there is no willing buyer and seller that negotiate the asset’s purchase price. Because of the essential role that asset valuations play in determining tax liabilities, there is a high sensitivity by the IRS and taxpayers to their accuracy. Transactions between related parties or not at arm’s length such as transfer of bequests, nonfungible real estate, or closely held business interests present complex valuation issues as there is no clear FMV. Congress uses a traditional carrot-and-stick approach to valuation by encouraging taxpayers to comply through clarifying and simplifying reporting obligations, along with imposing penalties for misstating the value of assets.

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May 20, 2022 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup | Permalink

Tax Now Or Tax Never: Political Optionality And The Case For Current-Assessment Tax Reform

David Gamage (Indiana-Maurer; Google Scholar) & John R. Brooks (Georgetown; moving to Fordham; Google Scholar), Tax Now or Tax Never: Political Optionality and the Case for Current-Assessment Tax Reform, 100 N.C. L. Rev. 487 (2022):

The U.S. income tax system is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is magnified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful. 

The conventional view among tax law experts has assumed that the problems created by the realization doctrine can be fixed on the back end by adjusting the rules that govern taxation at the time of realization. Specifically, most tax scholars have favored reform proposals that would retain the realization doctrine while aiming to impose taxes in a way that would erase or reduce the financial benefits of deferral. Examples include retrospective capital gains tax reforms, progressive consumption tax reforms, and more incremental reforms such as ending stepped-up basis. 

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

Thursday, May 19, 2022

Raskolnikov Presents Should Only The Richest Pay More? Today At The OMG Transatlantic Tax Talks

Alex Raskolnikov (Columbia) presents Should Only the Richest Pay More? today as part of the OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

Alex_raskolnikov_0This paper challenges the leading academic, political, and cultural narrative supporting greater redistribution. This narrative holds that redistribution should come at the expense of the very restricted group of the highest earners: the one percent, the super-rich, the billionaire class. I argue that the very reasons offered in support of this view call for redistribution from a much broader group that includes the affluent—those with incomes in the ninetieth to ninety ninth percentiles of the distribution. Whether one looks at the recent trends in income concentration, wealth concentration, economic mobility, government capture, political polarization, or the rise of populism, the affluent are as great or greater contributors to these problems as those in the top one percent. Remarkably, the contemporary U.S. legal and economic scholarship has ignored the affluent almost completely, greatly limiting the magnitude of possible economic transfers as well the form that these transfers may take.

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May 19, 2022 in Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Who Gives A Trump? Evidence Of Framing Effects In Tax Policy

Mark McKnight (Southern Indiana; Google Scholar), Curtis Price (Southern Indiana; Google Scholar), Andrew Dill (Southern Indiana), Timothy Bryan (Marshall; Google Scholar) & Brett Bueltel (Southern Indiana; Google Scholar), Who Gives a Trump? Evidence of Framing Effects in Tax Policy, 23 J. Acct., Ethics & Pub. Pol'y 149 (2022):

We use a framed survey to measure how associating the name “Trump” with the Tax Cuts and Jobs Act (TCJA) affects people’s satisfaction of said Act. Our research included 72 participant clients from a Volunteer Income Tax Assistants (VITA) program, who were asked to provide baseline data regarding political affiliation and attitudes prior to having tax returns completed. We find that using the name “Trump” with people who self-identify as Republican results in more satisfaction with the Act, whereas, for people with who do not self-identify as Republican, association with the name “Trump” does not precipitate stronger or weaker satisfaction with the Act.

Trump

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

Wednesday, May 18, 2022

Innovations In IPO Deal Structure: Do Up-C IPOs Harm Public Shareholders?

Mary Brooke Billings (NYU), Kevin Hsueh (NYU), Melissa F. Lewis-Western (BYU; Google Scholar) & Gladriel Shobe (BYU; Google Scholar), Innovations in IPO Deal Structure: Do Up-C IPOs Harm Public Shareholders? (additional write-up here):

This paper examines an innovation in capital formation that has spurred contentious debate: the Umbrella Partnership Corporation (“Up-C”) IPO. Advisors and underwriters argue that the Up-C deal structure is a driver of post-IPO value and, thus, is a value-enhancing means of raising capital that may be one solution to concerns regarding the drop in the number of publicly traded companies. Consistent with these claims, recent research suggests that organizing soon-to-be public businesses as pass-through entities (as is the case for UpCs) leads to superior future performance. Yet, broadening the analysis to consider abnormal stock performance and post-IPO litigation of a larger and more recent sample of exclusively Up-C IPOs, we conclude just the opposite. While the Up-C deal structure increases IPO valuations and predicts positive post-IPO operating performance, the return performance of Up-C IPOs indicates that Up-C deals harm public shareholders.

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

Soled & Morris: The Strange And Curious Tax Treatment Of Investment Expenses

Jay A. Soled (Rutgers; Google Scholar) & Mallory A. Morris (Dechert), The Strange And Curious Tax Treatment Of Investment Expenses, 67 Vill. L. Rev. 101 (2022):

To secure income, taxpayers often incur a wide range of expenses. At least theoretically, one might think that the Internal Revenue Code (“Code”) would accord all such expenses similar tax treatment, but (i) trade or business expenses and (ii) investment expenses endure the exact opposite tax treatment: the former are generally allowed, whereas the latter are commonly disallowed. The obvious question is why there is a difference in treatment between the two.

This Article explores possible answers to that important question. It first traces the evolution of the Code’s dichotomous tax treatment of trade or business versus investment expenses. It then investigates possible justifications and their associated merits for the different handling of these two expense categories. 

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

Using The Internal Revenue Code To Limit Coaching Salaries: A Proposal To Bring Amateurism Back Into College Football

Blaire Mikesell (J.D. 2022, Indiana-Maurer), Note, Using the Internal Revenue Code to Limit Coaching Salaries: A Proposal to Bring Amateurism Back into College Football, 97 Ind. L.J. 393 (2022):

Since formal collegiate athletic competitions began in 1852, they have gained popularity and become a mainstay in American culture. This rise in popularity coupled with increased media coverage allowed college athletics, and particularly college football, to grow into a successful business that generates billions of dollars in revenue each year. Colleges and institutions earn this athletic revenue as tax-free income due to their tax-exempt status under the Internal Revenue Code § 501(c)(3) tax-exemption statute. The basic policy underlying this statute is as follows: colleges and universities provide an important benefit to the public by providing education, and in exchange for that provided benefit, the IRS does not tax educationally related income. Currently, income generated by college athletics is educationally related and thus is earned under the tax-exempt status of the university.

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

Tuesday, May 17, 2022

A Half-Century With The Internal Revenue Code: The Memoirs Of Stanley Surrey

A Half-Century with the Internal Revenue Code: The Memoirs of Stanley S. Surrey (Lawrence Zelenak (Duke) & Ajay Mehrotra (Northwestern; Google Scholar) eds. Carolina Academic Press 2022):

SurreyStanley S. Surrey was the most prominent mid-twentieth-century American tax law academic, and the federal government official with the greatest influence on tax policy over that same period (aside from politicians). His professional life with the federal tax system spanned half a century, ending only with his death at the age of 73 in 1984. As Surrey writes in his memoirs, he had good reason to "doubt that any person alive today has had as close and as varied a relationship with the Internal Revenue Code as I have had."

He divided the five decades of his professional life between academia (three early years at the University of California, Berkeley, followed by many years at Harvard Law School), and two lengthy tours of duty in the service of the U.S. Treasury Department. In his second Treasury stint he served as the Assistant Secretary of the Treasury for Tax Policy, the highest executive branch position exclusively focused on taxation. Surrey's influence on the federal tax system was deep and pervasive and continues to this day; perhaps his most enduring accomplishment has been his development of tax expenditure analysis, which since the 1970s has played a central role in a wide range of tax policy discussions.

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May 17, 2022 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

Socialism, Progressive Taxation, And The Fiscal State

Sol Picciotto (ICTD, Lancaster, London; Google Scholar), Socialism, Progressive Taxation, and the Fiscal State:

This paper traces the philosophical, political, sociological and economic underpinning for the advocacy by socialists of progressive taxation, from the Communist Manifesto to recent supporters of tax justice campaigns. Socialists’ attitudes to taxation have been tied to their primary aim of socialisation of the ownership of the means of production, reflecting the view that inequality and exploitation are inherent in capitalism, which rests on private property enforced by state power. Communism, as developed particularly by Marx and Engels, aimed to transcend capitalism and end the separation of the state from civil society, by the socialisation of property, including through progressive taxation. Marx’s view in Capital volume 3 that the emergence of large scale enterprises already entailed the ‘abolition of capital as private property within the framework of capitalist production itself’, when it was published in 1894 became central to the debates among German socialists (Liebknecht, Kautsky, Bernstein and Luxemburg), and the Austro-Marxists (Renner, Hilferding), but socialists split when graduated direct taxes were introduced to help fund the welfare-warfare state. Goldscheid’s outline for a social science of the state centred on fiscality underpinned his radical and influential wartime proposals to finance the socialisation of large corporations through taxes on capital.

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

Colella: Crispino Upholds IRS Mailbox Rule Reg

Frank G. Colella (Pace), ‘But I Mailed It’ — Crispino Upholds IRS Mailbox Rule Regulation, 173 Tax Notes Fed. 1479 (Dec. 13, 2021):

Tax Notes Federal (2020)In Crispino, the U.S. District Court for the District of New Jersey held that taxpayers cannot introduce extrinsic evidence under the common law mailbox rule to establish timely filing of their claim for refund and, accordingly, dismissed the refund action for lack of jurisdiction. Crispino, a decision appealable to the Third Circuit, upheld the IRS’s position that the only means to satisfy section 7502, the statutory “mailbox rule,” is by proper compliance with reg. section 301.7502- 1(e)(2), which requires proof of certified or registered mailing when the IRS alleges that it has not received a document.

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May 17, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Monday, May 16, 2022

Lipman: How To Design An Antiracist State And Local Tax System

Francine Lipman (UNLV; Google Scholar), How to Design An Antiracist State and Local Tax System, 53 Seton Hall L. Rev. ___ (2022):

Since the first ship of enslaved African people landed in Virginia in 1619, racist policies in institutions, systems, structures, practices, and laws have ensured inequity for people of color. These racist policies include every imaginable variant of injustice from slavery to lynching, to segregation, and to economic injustices, including those delivered through tax systems today. Although facially color-blind, tax systems have long empowered the explosion of white wealth and undermined wealth accumulation for Black families and communities of color. State and local tax systems, especially in the South, have deeply-rooted racist fiscal policies, including Jim Crow laws that continue to sustain and bolster racial inequality today. These injustices have become even more obvious during the global pandemic.

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

Lesson From The Tax Court: Only One Exclusion For Military Retiree Disability Payments

Camp (2021)My dad served as a doctor in the military for 30 years, 23 days. Starting this week, he will have been retired for longer than he served. When he first retired, he received a monthly pension check from the Defense Finance and Accounting Service (DFAS) and that was all.  A few years later he learned that his hearing loss, likely from his time in Vietnam, qualified him for disability payments from the Department of Veterans Affairs (VA).  He applied for, and received, a 30% disability rating.  He then started receiving two checks each month, one from DFAS and one from the VA.

My dad’s DFAS check is included in gross income but his VA check is not, thanks to §104(a)(4).  If he had never applied for the disability rating, however, §104 would still permit him to exclude part of his DFAS check to the extent he would have be entitled to a disability check from the VA.  Confused?  Today’s lesson will help! 

In Tracy Renee Valentine v. Commissioner, T.C. Memo. 2022-42 (Apr. 28, 2022) (Judge Gustafson), the taxpayer was a veteran and received two checks per month, one from DFAS and one from VA for disability compensation.  She wanted to exclude not only the VA disability check, but she also wanted to exclude part of her DFAS check.  But she mis-read §104(a)(4)’s interplay with §104(b).  Judge Gustafson teaches us the proper way to read the rules.  Basically, veterans get only one exclusion for their disability payments.  Details below the fold.

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May 16, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Sunday, May 15, 2022

The Top Five New Tax Papers

There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #4:

  1. SSRN Logo (2018)[940 Downloads]  Amazon and the State Aid Tax Saga, by Leopoldo Parada (Leeds; Google Scholar)
  2. [521 Downloads]  How Treasury and the IRS Have Allowed High-Net-Worth Taxpayers to Exploit Stepped-Up Basis on Intergenerational Wealth Transfers, and How They Can Stop It: Answers to Question for the Record, by Daniel Hemel (Chicago; moving to NYU; Google Scholar)
  3. [385 Downloads]  Taxing Robots, by Rita de la Feria (Leeds; Google Scholar) & Maria Amparo Grau Ruiz (Universidad Complutense de Madrid; Google Scholar)
  4. [350 Downloads]  A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, by Andrew Granato (J.D.|Ph.D., Yale; Google Scholar)
  5. [346 Downloads]  Permanent Establishment and Fixed Establishment in the Context of the Subsidiary and the Digital Economy, by Stoycho Dulevski (University of National and World Economy; Google Scholar)

May 15, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, May 14, 2022

Azam: Online Taxation Post Wayfair

Rifat Azam (Radzyner School of Law, Israel; Google Scholar), Online Taxation Post Wayfair, 51 N.M. L. Rev. 116 (2021):

WayfairThe United States Supreme Court saved the states’ sales tax base in the landmark case of South Dakota v. Wayfair in 2018. This revolutionary decision ended the long ban on states imposing sales tax collection duties on out-of-state retailers without a physical presence in the state, as established in Bellas Hess v. Department of Revenue of Illinois in 1967 and Quill Corp. v. North Dakota in 1992. Wayfair now allows states to impose sales taxation on out-of-state retailers in the era of digitalization. In this article, I provide valuable guidelines and suggestions to aid states on this critical journey toward taxing remote online transactions fairly and efficiently.

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