Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews The Interconnections Between Corruption And Tax Crimes By Ring & Grasso

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Diane Ring (Boston College; Google Scholar) & Costantino Grasso (Manchester Metropolitan; Google Scholar), Beyond Bribery: Exploring the Intimate Interconnections Between Corruption and Tax Crimes, 85 L. & Contemp. Probs. 1 (2022).

Complex economic crimes have emerged as a major menace to the international society in recent years. Yet, few studies have investigated the connections between tax fraud and corruption. While “corruption” has been referenced within the tax abuse context, analysis has been mostly focused on “bribery,” i.e. paying a government official to avoid taxes. There remains a wide gap between the two ends of such spectrum, in which tax avoidance and evasion play a significant role. Various forms of corruption such as “nepotism, asynchronous exchanges, and unreciprocated but corrupt granting of favors” are not included in international terminology as of yet. The legal literature generally rejects a corruption theory beyond bribery. Legal experts appear to oppose a more comprehensive definition of corruption for several reasons including, but not limited to, lack of supported evidence, difficulties to uncover, prove, and publicize tax corruption, and infractions of the “Principle of legality.”

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Next Week’s Tax Workshops

Monday, March 6: Deanna Newton (Pepperdine) will present Closing the Opportunity Gap as part of the Florida State Law and Business Speaker Series. If you would like to attend, please contact Jeffrey Kahn.

Tuesday, March 7: Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar) will present Subjective Costs of Tax Compliance (with Jonathan Choi (Minnesota; Google Scholar)) as part of the Columbia Davis Polk & Wardwell Tax Policy Colloquium. If you would like to attend, please contact David Schizer.

Tuesday, March 7: Joel Slemrod (Michigan; Google Scholar) will present as part of the UCLA Colloquium on Tax Policy and Public Finance. If you would like to attend, please contact Kirk Stark and Jason Oh. 

Tuesday, March 7: Andy Grewal (Iowa; Google Scholar) will present Billionaire Taxes and the Constitution as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Emily Satterthwaite and Dayanand Manoli. 

Wednesday, March 8: Manoj Viswanathan (UC-San Francisco; Google Scholar) will present Tax and Expectation Damages as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Benjamin Alarie. 

Thursday, March 9: Shu-Yi Oei (Duke; Google Scholar) will present Understanding Developing Country Tax Treaties with OECD Partners: A Multilevel Analysis as part of the Duke Tax Policy Seminar. If you would like to attend, please contact Lawrence Zelenak. 

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Gilens Presents Campaign Finance Regulations And Public Policy Today At UCLA

Martin Gilens (UCLA) presents  Campaign Finance Regulations and Public Policy, 115 Am. Pol. Sci. Rev. 1074 (2021) (with Shawn Patterson, Jr. (Southern Oregon) & Pavielle Haines (Rollins College)) at UCLA today as part of its Colloquium on Tax Policy and Public Finance hosted by Kirk Stark and Jason Oh:

Despite a century of efforts to constrain money in American elections, there is little consensus on whether campaign finance regulations make any appreciable difference. Here we take advantage of a change in the campaign finance regulations of half of the U.S. states mandated by the Supreme Court’s Citizens United decision. This exogenously imposed change in the regulation of independent expenditures provides an advance over the identification strategies used in most previous studies. Using a generalized synthetic control method, we find that after Citizens United, states that had previously banned independent corporate expenditures (and thus were “treated” by the decision) adopted more “corporate-friendly” policies on issues with broad effects on corporations’ welfare; we find no evidence of shifts on policies with little or no effect on corporate welfare. 

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Reckoning With Structural Racism In Legal Education: Methods Toward A Pedagogy Of Antiracism

Doron Samuel-Siegel (Richmond), Reckoning with Structural Racism in Legal Education: Methods Toward a Pedagogy of Antiracism, 29 Cardozo J. Equal Rts. & Soc. Just. 1 (2022):

There is an empty quality to much of what passes as “diversity, equity, and inclusion” work in legal education. Despite a robust body of scholarship on teaching law consistent with the goals of antiracism, many legal educators struggle to put theory into practice. This Article responds to that struggle, offering a holistic, methodical approach to a pedagogy of antiracism whose goal is twofold: create conditions in which racially minoritized students learn to their full potential, free from the harms of traditional legal education; and equip all students, regardless of identity, to contribute to the dismantlement of structural racism. Absent such pedagogy, legal educators fail to carry out our commitments to students and to equal justice under law, and ignore central duties imposed by ABA accreditation standards.

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Gómez: Too Good To Be True—Private Placement Life Insurance Policies

Luís Calderón Gómez (Cardozo; Google Scholar), Too Good to Be True: Private Placement Life Insurance Policies, 178 Tax Notes Fed. 555 (Jan. 23, 2023): 

In this article, Calderón Gómez examines a tax avoidance scheme involving private placement life insurance policies — large policies that potentially allow wealthy taxpayers to move their traditionally tax-inefficient investments in private equity and hedge funds into a life insurance policy and accumulate, borrow against, and pass on those investment gains effectively tax free — and sketches some possible alternatives to stop the abuse of these policies.

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Bearer-Friend Presents Poll Taxes, Revisited Today At Northwestern

Jeremy Bearer-Friend (George Washington; Google Scholar) presents Poll Taxes, Revisited at Northwestern today as part of its Advanced Topics in Taxation Colloquium hosted by Gregg Polsky:

In the United States, the term “poll tax” conjures a very specific historical episode: the use of tax policy to prevent voting by Black citizens. While “poll tax” is an accurate descriptor of these taxes, poll taxes have a much more expansive history within the twentieth century.

Following in the rich tradition of comparative tax scholarship that looks at multiple jurisdictions to arrive at broader tax policy conclusions, this Article examines four distinct poll taxes applied by Anglophone governments in the twentieth century. After introducing the statutory text, design features, and democratic context of each of these twentieth century poll taxes, the Article makes three original claims about poll taxes.

First, my comparative research on twentieth century poll taxes reveals how universal language in tax statutes is used to effectively target political enemies. 

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Gómez: Whose Debt Is It Anyway?

Luís Calderón Gómez (Cardozo; Google Scholar), Whose Debt Is It Anyway?, 77 Tax L. Rev. __ (2023):

Every year, companies issue hundreds of billions of dollars of debt with a feature carrying unclear tax consequences. So do individuals, who frequently tie their most significant financial asset to this type of instrument. Yet this instrument is not an exotic or innovative financial derivative, but is simple vanilla debt with two or more borrowers, or “co-obligated debt”. Co-obligated debt poses a conceptual problem for the law because it does not fit neatly into the simple and dyadic legal framework underlying the law’s conception of debt, where one creditor lends money to one borrower in exchange for a direct promise to pay the amount borrowed plus interest. Such a framework collapses when the debt instrument has multiple borrowers—as a matter of law or as a matter of fact. As a result, courts and the IRS frequently struggle with the consequences of a transaction, unable to consistently find a resolution to the puzzle: whose debt is it anyway? This Article illuminates the previously unexplored side of this fundamental aspect of the law on debt, investigating its roots in surety, guaranty, and restitution law, and surveys the law’s inconsistent treatment of multiple obligors, emphasizing its erratic stances on interest deductions, cancellation of indebtedness income, and debt modifications. 

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Risch Presents Trickle-Down Revisited Today At Columbia

Max Risch (Carnegie Mellon; Google Scholar) presents Trickle-Down Revisited at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium hosted by David Schizer: 

In this paper I discuss what can be learned about “trickle-down” ideas from recent empirical evidence on tax incidence. Tax incidence, defined as the effect of tax policies on the distribution of welfare, provides an ideal framework because of the explicit focus on tracing the impacts of a policy beyond the directly affected group (ex. the rich). I arrive at three main lessons. First, recent evidence finds that business income taxes do affect the earnings of workers, but these effects are mostly a result of rent-sharing and taxation of rents, not from traditional supply-side channels. Second, there are systematic differences in the types of workers that are affected by the tax policies, so to understand how taxing businesses or business owners affects the distribution of welfare, it is not sufficient to treat workers/labor as a class. Third, across different income tax policies that statutorily affect the rich, the burden is generally ultimately born by the rich.

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Guyton Presents Sequential Decision-Making For Internal Revenue Service Audit Selection Today At Georgetown

John Guyton (IRS) presents Integrating Reward Maximization and Population Estimation: Sequential Decision-Making for Internal Revenue Service Audit Selection at Georgetown today as part of its Tax Law and Public Finance Workshop hosted by Emily Satterthwaite and Dayanand Manoli:

We introduce a new setting, optimize-and-estimate structured bandits. Here, a policy must select a batch of arms, each characterized by its own context, that would allow it to both maximize reward and maintain an accurate (ideally unbiased) population estimate of the reward. This setting is inherent to many public and private sector applications and often requires handling delayed feedback, small data, and distribution shifts. We demonstrate its importance on real data from the United States Internal Revenue Service (IRS). The IRS performs yearly audits of the tax base. Two of its most important objectives are to identify suspected misreporting and to estimate the “tax gap” — the global difference between the amount paid and true amount owed. 

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Oei Presents Understanding Developing Country Tax Treaties With OECD Partners Today At UC-San Francisco

Shu-Yi Oei (Duke; Google Scholar) presents Understanding Developing Country Tax Treaties with OECD Partners: A Multilevel Analysis at UC-San Francisco today as part of its Tax Policy Colloquium hosted by Manoj Viswanathan:

This paper investigates what factors predict the relative distribution of taxing rights in tax treaties signed between developing and developed countries. Existing literature posits power-based, contractualist, and institutional/contextual theories of how tax treaties allocate taxing rights between signatories. This paper examines the available evidence supporting each of these theories using multilevel regression analysis to do so. This paper ultimately finds suggestive evidence that relative power, contractually bargained-for preferences, and institutional/contextual pathways may all play some role in shaping tax treaty outcomes.

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Sugin Presents Proxy Taxes Today At San Diego

Linda Sugin (Fordham; Google Scholar) presents Proxy Taxes at San Diego today as part of its Tax Law Speaker Series:

This article offers a conceptual and theoretical framework for seemingly oddball and unprincipled provisions in the Internal Revenue Code, praising them for increasing progressivity and producing revenue.  “Proxy taxes” impose liability on taxpayers with ability to pay who are connected, in some way, to income earners who pay insufficient or no tax on that income.  Given the combination of rising income and wealth inequality and the political impossibility of raising taxes on income in a straightforward way, policymakers should embrace proxy taxes as a flexible solution to a pressing tax justice problem.  This article argues that proxy taxes contribute to a more comprehensive income tax system, despite their departure from classic income tax principles, and can also be more efficient than higher taxes imposed on income.

While accepting the corporate governance critiques in the literature, the article endorses §162(m)’s limit on the deduction for executive compensation as a great proxy tax on labor income. 

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Blank & Osofsky: Democratizing Administrative Law

Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), Democratizing Administrative Law, 73 Duke L.J. __ (2024):

When agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy, but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.

Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. 

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Lesson From The Tax Court: The New Evidence Rule In Spousal Relief Cases

When a taxpayer requests spousal relief under §6015, the IRS must decide whether to grant it.  If the IRS denies relief, the taxpayer can petition the Tax Court. §6015(e).  In 2019 Congress created a modified administrative record rule for how the Tax Court is supposed to conduct that review.  Taxpayer First Act, 133 Stat. 981, 988.

It’s awkward.  Congress tells the Court to review the IRS decision de novo but, at the same time, tells the Court to do that using only a limited information set consisting of (a) “the administrative record established at the time of the determination” and (b) “any additional newly discovered or previously unavailable evidence.”  §6015(e)(7).

Sydney Ann Chaney Thomas v. Commissioner, 160 T.C. No. 4 (Feb. 13, 2023) (Judge Toro), is a reviewed opinion where a unanimous Tax Court interprets the phrase “newly discovered or previously unavailable evidence” broadly rather than narrowly, thus creating a new evidence rule (pun intended) that robustly protecting its ability to conduct the required de novo review.  Ironically, the decision worked against the taxpayer in this case because it was the IRS that here wanted to introduce new information (the taxpayer’s social media posts).  The taxpayer objected that those posts had been publicly available during the administrative proceeding; therefore they were not newly discovered or previously unavailable.  The Court rejected that argument and admitted the posts as evidence.

Today’s case is also an illustrative contrast to the T.C. opinion I discussed in last week’s post.  That was a case where the taxpayer was proceeding pro se.  And there the Court had no benefit of briefing from both sides.  I think the Court’s opinion showed it.  In today’s case, the taxpayer was (eventually) represented by one of the best tax attorneys I know, Megan Brackney.  Thus the Court had the benefit of a well-presented taxpayer argument.  The Court also had the benefit of a strong amicus brief submitted jointly by the Center for Taxpayer Rights, the Community Tax Law Project, the UC-SF LITC and the Villanova LITC.  That made the Tax Court’s opinion all the more robust, which is what it will need if and when its decision is reviewed in turn by a Court of Appeals.

Spoiler alert.  This post is a little longer than normal.  Sorry, Lew.

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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. The #1 paper is #800 among 17,490 tax papers in all-time downloads:

1. [773 Downloads]  The Declining Appeal of Inherited Retirement Accounts, by Richard L. Kaplan (Illinois; Google Scholar)
2. [616 Downloads]  Pillar 2, Fiat, and the EU Unanimity Rule on Tax Matters, by Rita de la Feria (Leeds)
3. [413 Downloads]  State Strategic Responses to the GloBE Rules, by Heydon Wardell-Burrus (Oxford) (reviewed by David Elkins (Netanya; (Google Scholar) here)
4. [304 Downloads]  Global Tax Reform and Mythical International Law, by Tarcísio Diniz Magalhães (Antwerp; Google Scholar) & Allison Christians (McGill; Google Scholar
5. [175 Downloads]  21st Century Churches and Federal Tax Law, by Ellen Aprill (Loyola-L.A.; Google Scholar) & Lloyd Hitoshi Mayer (Notre Dame; Google Scholar)

It’s Not Just Our Students: ChatGPT Is Coming For Faculty Scholarship

Chronicle of Higher Ed Op-Ed:  It’s Not Just Our Students — ChatGPT Is Coming for Faculty Writing, by Ben Chrisinger (Oxford; Google Scholar):

Almost immediately after OpenAI released ChatGPT in late November, people began wondering what it would mean for teaching and learning. A widely read piece in The Atlantic that provided one of the first looks at the tool’s ability to put together high-quality writing concluded that it would kill the student essay. Since then, academics everywhere have done their own experimenting with the technology — and weighed in on what to do about it. Some have banned students from using it, while others have offered tips on how to create essay assignments that are AI-proof. Many have suggested that we embrace the technology and incorporate it into the classroom.

While we’ve been busy worrying about what ChatGPT could mean for students, we haven’t devoted nearly as much attention to what it could mean for academics themselves. And it could mean a lot. Critically, academics disagree on exactly how AI can and should be used. And with the rapidly improving technology at our doorstep, we have little time to deliberate.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Do Corporate Taxes Impede Mergers?

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Erin Henry (Arkansas; Google Scholar), Jennifer Luchs-Nuñez (Colorado State; Google Scholar) & Steven Utke (Connecticut; Google Scholar), Do Corporate Taxes Impede Merger and Acquisition Activity? Evidence from Private Corporations (Feb. 9, 2023)

The intuition that business income taxes affect the rate and volume of merger and acquisition activity has a certain theoretical—and anecdotal—appeal. The empirical challenges to validating this intuition are, however, legion. M&A implicates myriad tax benefits and detriments, firms’ abilities to monetize these tax benefits varies, and study design and data collection present significant hurdles. In a recent paper, Erin Henry, Jennifer Luchs-Nuñez, and Steven Utke employ an innovative natural experiment and proprietary IRS data to address taxes’ role in M&A involving closely held corporations. The authors show that entity-level tax cuts operate principally at the intensive margin, leading buyers to pay moderately lower prices for targets and their assets. Consistent with other research, the authors find little aggregate effect at the extensive margin—on the overall number of acquisitions.

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Next Week’s Tax Workshops

Monday, February 27: Linda Sugin (Fordham; Google Scholar) will present Proxy Taxes as part of the San Diego Tax Law Speaker Series. 

Tuesday, February 28: Shu-Yi Oei (Duke; Google Scholar) will present Understanding Developing Country Tax Treaties with OECD Partners: A Multilevel Analysis as part of the UC-San Francisco Law Tax Policy Colloquium. If you would like to attend, please contact Manoj Viswanathan. 

Tuesday, February 28: Max Risch (Carnegie Mellon; Google Scholar) will present Trickle-Down Revisited as part of the Columbia Davis Polk & Wardwell Tax Policy Colloquium. If you would like to attend, please contact David Schizer. 

Tuesday, February 28: John Guyton (IRS) will present Integrating Reward Maximization and Population Estimation: Sequential Decision-Making for Internal Revenue Service Audit Selection (with Peter Henderson (Stanford; Google Scholar), Ben Chugg (Carnegie Mellon), Brandon Anderson (IRS), Kristen Altenburger (Stanford; Google Scholar), Alex Turk (IRS), Jacob Goldin (Chicago; Google Scholar) & Daniel E. Ho (Stanford; Google Scholar)) as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Emily Satterthwaite and Dayanand Manoli.

Wednesday, March 1: Jeremy Bearer-Friend (George Washington; Google Scholar) will present Poll Taxes, Revisited as part of the Northwestern Advanced Topics in Taxation Colloquium. If you would like to attend, please contact Gregg Polsky.

Thursday, March 2: Martin Gilens (UCLA) will present Campaign Finance Regulations and Public Policy, 115 Am. Pol. Sci. Rev. 1074 (2021) (with Shawn Patterson, Jr. (Southern Oregon) & Pavielle Haines (Rollins College)) as part of the UCLA Colloquium on Tax Policy and Public Finance. If you would like to attend, please contact Kirk Stark and Jason Oh. 

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UCLA|NYU|Berkeley Host Conference Today On Five Years After TCJA: New Directions In Tax Policy Research

UCLA|NYU|Berkeley host a symposium today on Five Years After TCJA: New Directions in Tax Policy Research today:

Tax Evasion|Non-Compliance|IRS Money and the Future of Tax Enforcement

• Natasha Sarin (Penn; Google Scholar)
• Daniel Reck (Maryland)
• Day Manoli (Georgetown; Google Scholar)

Taxing the Rich After TCJA

• Danny Yagan (UC-Berkeley; Google Scholar)
• Wojciech Kopczuk (Columbia; Google Scholar)
• Daniel Hemel (NYU; Google Scholar)
• David Kamin (NYU) (discussant)

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Stetson Hosts 2nd Annual Tax Law Symposium Today

The Stetson Business Law Review hosts a Tax Law Symposium today at  9:00 AM (registration): 

State and Local Tax Law Panel

• George Thurlow, America’s Most Hated Tax?: Why Property Taxes Are Unfair and Regressive Taxation
• Omar Hussein, Stock Transfer Taxes in the Modern Age

Embracing Tax Avoidance

• David Elkins (Netanya, visiting NYU; Google Scholar) 

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Duplicative Taxation Among The States: A Problem Not Worth Solving?

Julie Roin (Chicago), Duplicative Taxation Among The States: A Problem Not Worth Solving?:

Recent legal and economic changes—not to mention the rise in telecommuting caused by COVID--have raised the salience of a long-simmering fact about the operation of state and local income tax systems: some multistate employers and employees pay a combined income tax liability that is higher than the tax they would have borne had they operated in just one jurisdiction. Seemingly beyond the reach of the courts to correct, there have been persistent calls for Congressional action to eliminate or reduce this “duplicative” taxation. This Article suggests that the alleged problem may be both less of a problem, and more resistant to a solution, than is commonly understood.

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Imposter Syndrome & The Law School Caste System

Sara Ochs (Louisville), Imposter Syndrome & The Law School Caste System, 42 Pace L. Rev. 373 (2022):

For decades, legal academia has been structured around a hierarchical caste system, with tenured and tenure-track doctrinal law professors—many of whom are men—occupying the highest caste, and professors of legal skills courses—who more often identify as women—relegated to the lower castes. The status of these “lower caste” professors is routinely reinforced through weaker job security, less respect, and lower pay than received by their doctrinal, “upper caste” colleagues. Given this inequality, imposter syndrome plays a pervasive role in the lives and careers of professors of legal skills courses. Relying on qualitative data obtained from teaching faculty and staff at ABA accredited and approved law schools nationwide, this article analyzes how the law school hierarchy manifests as imposter syndrome in professors of legal skills courses, which impacts their relationships with colleagues; teaching; relationships with students; publication and promotion of scholarship; and personal health and wellbeing.

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Mason Presents Bounded Extraterritoriality Today At Duke

Ruth Mason (Virginia; Google Scholar) presents Bounded Extraterritoriality (with Michael Knoll (Penn)) at Duke today as part of its Tax Policy Seminar hosted by Lawrence Zelenak:

Conclusion
It is easy to accept that federalism imposes limits on states’ entitlement to regulate too much. Vastly more difficult is describing the precise contours of any such limit. The challenge of this Article was to find a way of thinking about extraterritoriality that is not only simpler than what has come before, but also grounded in our Constitution’s structural federalism. To be successful, a conception of extraterritoriality must both give clear direction to courts and be sensitive to differences between nexus, extraterritoriality, and burdens. It must also answer the critics, who rightly argue that because extraterritorial effects are ubiquitous in commercial regulation, judicial attempts to root them out are unprincipled, overbroad, and unduly restrain states.

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Kim Presents Taxing Digital Platforms Today At Northwestern

Young Ran (Christine) Kim (Cardozo; Google Scholar) presents Taxing Digital Platforms (with Darien Shanske (UC-Davis; Google Scholar)) at Northwestern today as part of its Advanced Topics in Taxation Colloquium hosted by Gregg Polsky: 

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

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

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American Tax Policy Institute Hosts Symposium This Friday On The Federal Income Tax: Racially Blind but Not Racially Neutral

The American Tax Policy Institute hosts a symposium on The Federal Income Tax: Racially Blind but Not Racially Neutral at Skadden, Washington, D.C., on Friday, February 24 (free registration):

Introduction and Opening Remarks

• Alice Abreu (Temple)

Panel I: Race, History, Taxation and Behavior

Race and taxation have always been intertwined in the United States. Tax law is deeply implicated in slavery, as colonies and then states sought to impose taxes on both land and the human beings who were treated as property. The United States Constitution famously counted enslaved persons as three-fifths of the white persons in the jurisdiction, and did not count “Indians” at all, for purposes of determining political representation. How, over time, did how subordinated racial groups, particularly African Americans, Native Americans, and others, rely on tax rhetoric and reality, including their roles as taxpayers, to demand greater political and social rights? In what way has the tax system continued to prop up the systematic exclusion of Blacks and other groups from ownership of homes and other property? What are the racial and gendered dimensions of choices taxpayers have made over time, including choices about the provision of services to family members? Who benefits from the tax-free treatment of imputed income? Given the tax system’s role in racial subordination, is there a way that the tax laws might be deployed to remedy race-based harms of enslavement, forced dispossession, centuries of race-based discrimination, or raced and gendered patterns of behavior?

• Alice Thomas (Howard) (moderator)
• Jeremy Bearer-Friend (George Washington; Google Scholar), Poll Taxes, Revisited
• Nyamagaga Gondwe (Wisconsin; Google Scholar), Economic Precarity and Tax Invisibility of Uncompensated Kin-Group Service Providers
• Anthony Infanti (Pittsburgh; Google Scholar), Taxation and Slavery in Colonial America: The Case for Reparations
• Richard Winchester (Seton Hall; Google Scholar), The Pontchartrain Park Case: Privilege Joins Prejudice in Tax Court 

Panel II: Tax Systems and Privileged Choices

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Mason Presents Bounding Extraterritoriality Today At Columbia

Ruth Mason (Virginia; Google Scholar) presents Bounding Extraterritoriality (with Michael Knoll (Penn)) at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium hosted by David Schizer:

Conclusion
It is easy to accept that federalism imposes limits on states’ entitlement to regulate too much. Vastly more difficult is describing the precise contours of any such limit. The challenge of this Article was to find a way of thinking about extraterritoriality that is not only simpler than what has come before, but also grounded in our Constitution’s structural federalism. To be successful, a conception of extraterritoriality must both give clear direction to courts and be sensitive to differences between nexus, extraterritoriality, and burdens. It must also answer the critics, who rightly argue that because extraterritorial effects are ubiquitous in commercial regulation, judicial attempts to root them out are unprincipled, overbroad, and unduly restrain states.

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Barring Diversity? The American Bar Exam As Initiation Rite And Its Eugenics Origin

Mary Szto (Syracuse), Barring Diversity? The American Bar Exam as Initiation Rite and its Eugenics Origin, 21 Conn. Pub. Int. L.J. 38 (2022): 

The American bar exam is an initiation rite that bars diversity in the legal profession.

According to the 2020 census, the US population is over 42% minorities. However, only 14% of the legal profession is. In 2020 the American Bar Association released data that the first-time bar exam pass rate was 88% for Whites, 80% for Asians, 78% for Native Americans, 76% for Hispanics, and 66% for Blacks.

Initiation rites often involve a separation from society, a liminal period, an ordeal, and then reincorporation into society. The bar exam follows this pattern. However, many minority candidates cannot afford months of unpaid isolated study, much less further bar attempts.

Racial disparities in first time bar passage rates are not coincidental, but rooted in the eugenics origin of the bar exam. Bar admissions standards arose amid teachings about Anglo-Saxon white supremacy in the late 1800s and early 1900s. Eugenics theory was then mainstream science and held that nonwhites should be denied access to property ownership, education, and the legal profession. Minorities were excluded from most law schools, and there was widespread fear of immigrants diluting the US white population and the legal profession.

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Tax Policy Center: More Black Couples Incur A Marriage Tax Penalty Than White Couples

Janet Holtzblatt, Swati Joshi & Nora Cahill (Tax Policy Center), Marriage Costs Black Couples More Than White Couples At Tax Time:

We find that 46 percent of Black married couples incurred a marriage penalty under 2018 tax law, compared to 43 percent of white couples.

Conversely, Black couples were less likely to receive a bonus than white couples (36 percent to 43 percent).

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Lesson From The Tax Court: The Limited Review Of Passport Revocation Certifications

Today’s lesson is about §7345, created by Congress in 2015.  The idea behind §7345 is simple.  If you owe taxes and the government threatens to take your passport, you are more likely to pay up.  But its operation is complex.  It requires the IRS to first certify to the State Department that a taxpayer has a “seriously delinquent tax debt.”  Then the State Department is authorized to take certain actions based on that certification.  Section 7345 permits taxpayers to seek Tax Court Review of IRS Certifications.

The Tax Court does not get many passport cases.  According to the Court’s FY 2024 Budget Request, of the 29,000 petitions filed in 2022, only 25 were §7345 petitions.  For those who are interested in learning more about the Court’s budget request, Keith Fogg posted this great review over on Procedurally Taxing.

So when the Tax Court gets a passport case, it often uses it to shape its §7345 jurisprudence by issuing precedential Tax Court opinions.  Today’s case is one of those. Blake M. Adams v. Commissioner, 160 T.C. No. 1 (Jan. 24, 2023) (Judge Toro), teaches two lessons.  First, the Court holds that it will not look behind the IRS certification to redetermine the merits of the tax liabilities that make up the certification.  Second, the Court also decides it lacks authority to determine whether the assessment underlying the Certification was procedurally defective.

Note that this is a case where the taxpayer was unrepresented.  While the Court’s desire to settle important §7345 issues is understandable, I question whether doing so in a pro-se case is desirable. Next week we will see a case where the Court wrote a much stronger opinion after first suggesting that the pro se taxpayer find counsel (who then filed briefed the issue) and also accepting an amicus brief. I offer my thoughts on this below the fold.

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SSRN Tax Professor Rankings

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 February 5, 2023) 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)	217,707	1	Reuven Avi-Yonah (Michigan)	11,875
2	Daniel Hemel (NYU)	128,768	2	Kristin Hickman (Minnesota)	6,367
3	Dan Shaviro (NYU)	125,977	3	Daniel Hemel (NYU)	4,776
4	Lily Batchelder (NYU)	125,814	4	Bridget Crawford (Pace)	4,134
5	David Gamage (Indiana-Bloom.)	123,478	5	Robert Sitkoff (Harvard)	3,066
6	Darien Shanske (UC-Davis)	116,573	6	Darien Shanske (UC-Davis)	3,037
7	David Kamin (NYU)	113,129	7	Ruth Mason (Virginia)	2,879
8	Cliff Fleming (BYU)	107,708	8	D. Dharmapala (Chicago)	2,838
9	Manoj Viswanathan (UC-Hastings)	104,350	9	Louis Kaplow (Harvard)	2,809
10	Ari Glogower (Northwestern)	103,504	10	Richard Ainsworth (Boston Univ.)	2,779
11	Rebecca Kysar (Fordham)	103,452	11	David Gamage (Indiana-Bloom.)	2,714
12	D. Dharmapala (Chicago)	49,459	12	Zachary Liscow (Yale)	2,563
13	Michael Simkovic (USC)	47,296	13	Kyle Rozema (Washington University)	2,492
14	Paul Caron (Pepperdine)	40,575	14	Kim Clausing (UCLA)	2,227
15	Louis Kaplow (Harvard)	39,193	15	Brad Borden (Brooklyn)	2,209
16	Richard Ainsworth (Boston Univ.)	36,989	16	Young Ran (Christine) Kim (Cardozo)	2,123
17	Bridget Crawford (Pace)	34,922	17	Margaret Ryznar (Indiana-Indy)	2,081
18	Robert Sitkoff (Harvard)	31,128	18	Lily Batchelder (NYU)	2,054
19	Brad Borden (Brooklyn)	29,692	19	Dan Shaviro (NYU)	1,901
20	Vic Fleischer (UC-Irvine)	29,480	20	Victoria Haneman (Creighton)	1,736
21	Ed Kleinbard (USC)	29,150	21	David Kamin (NYU)	1,688
22	Ruth Mason (Virginia)	28,562	22	Richard Kaplan (Illinois)	1,658
23	Jim Hines (Michigan)	27,547	23	Chris Sanchirico (Penn)	1,573
24	Richard Kaplan (Illinois)	26,592	24	Brian Galle (Georgetown)	1,453
25	Katie Pratt (Loyola-L.A.)	26,025	25	Edward McCaffery (USC)	1,418

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Global Tax Reform And Mythical International Law

Tarcísio Diniz Magalhães (Antwerp; Google Scholar) & Allison Christians (McGill; Google Scholar), Global Tax Reform and Mythical International Law:

Over the past several years, governments around the world have been debating how to design coordinated minimum taxes on large multinationals in a bid to end race-to-the-bottom global tax competition. The plans so far have been complex and intricate, but in virtually all respects the evolution of ideas has followed well-worn practices and approaches in tax and corporate law. Nevertheless, outspoken critics have emerged with arguments against change that are grounded in abstract and often ill-defined international law concepts—effectively, a mythology of general and/or customary norms meant to forestall forward momentum and cast doubt on the fundamental workability of global tax reform as it has been collaboratively developed to date. This Article examines the myths of international tax law and demonstrates that each purported impediment is either conceptually under-theorized or exaggerated in legal impact or both.

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The Top Five New Tax Papers

There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #4 and #5. The #1 paper is #782 among 17,482 tax papers in all-time downloads:

1. [732 Downloads]  The Declining Appeal of Inherited Retirement Accounts, by Richard L. Kaplan (Illinois; Google Scholar)
2. [600 Downloads]  Pillar 2, Fiat, and the EU Unanimity Rule on Tax Matters, by Rita de la Feria (Leeds)
3. [397 Downloads]  State Strategic Responses to the GloBE Rules, by Heydon Wardell-Burrus (Oxford) (reviewed by David Elkins (Netanya; (Google Scholar) here)
4. [229 Downloads]  Global Tax Reform and Mythical International Law, by Tarcísio Diniz Magalhães (Antwerp; Google Scholar) & Allison Christians (McGill; Google Scholar
5. [139 Downloads]  21st Century Churches and Federal Tax Law, by Ellen Aprill (Loyola-L.A.; Google Scholar) & Lloyd Hitoshi Mayer (Notre Dame; Google Scholar)

Tax Policy Center: Itemized Deductions Benefit Whites More Than Blacks And Hispanics

Benjamin R. Page, Tracy Gordon & Aravind Boddupalli (Tax Policy Center), Providing Changemakers The Data They Need To Tackle Racial Inequities In The US Tax Code:

[A]cross all income categories, itemized deductions disproportionately benefit White taxpayers (figure 2). Overall, itemized deductions boost the after-tax incomes of units classified as White by 0.7 percent, whereas those classified as Black gain an average of 0.4 percent, and those classified as Hispanic an average of 0.2 percent. Those differences occur in large part because itemized deductions primarily benefit higher-income households, among whom Black and Hispanic households are underrepresented.

We also found White taxpayers and Black taxpayers benefit relatively more from itemized deductions than Hispanic households, even within the same income categories. For example, among those in the top income quintile (which receives almost 90 percent of the benefits of itemized deductions), itemized deductions raise the after-tax incomes of White taxpayers by an average of 1.1 percent, compared to 1.0 percent for Black taxpayers, and 0.6 percent for Hispanic taxpayers (figure 3).

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Morse's Tax Without Law: Cui's Administrative Foundations Of The Chinese Fiscal State

This week, David Elkins (Netanya, visiting NYU 2021-2023; Google Scholar) reviews a new paper by Susan Morse (Texas; Google Scholar), Tax Without Law: Book Review of Wei Cui, The Administrative Foundations of the Chinese Fiscal State, 26 Fla. Tax Rev. __ (2023).

In this week’s feature article, Susan Morse reviews a new book by Wei Cui (British Columbia), The Administrative Foundations of the Chinese Fiscal State (Oxford University Press 2022). While it might be a bit unusual to review a review, I think that Professor Cui’s important book and Professor Morse’s insightful comments make it a worthwhile endeavor.

Professor Cui describes the Chinese fiscal system as divorced from the rule of law. No legal norms guide the tax administration, audits are practically nonexistent, and there is no meaningful judicial review. At the heart of the system are hundreds of thousands of revenue managers, each responsible for perhaps 1,000 taxpayers. One of their functions is to serve as a “nagging adult presence,” to make sure that taxpayers register and file on time. 

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Next Week’s Tax Workshops

Tuesday, February 21: Ruth Mason (Virginia; Google Scholar) will present Bounded Extraterritoriality (with Michael Knoll (Penn)) as part of the Columbia Davis Polk & Wardwell Tax Policy Colloquium. If you would like to attend, please contact David Schizer. 

Wednesday, February 22: Young Ran (Christine) Kim (Cardozo; Google Scholar) will present Taxing Digital Platforms (with Darien Shanske (UC-Davis; Google Scholar)) as part of the Northwestern Advanced Topics in Taxation Colloquium. If you would like to attend, please contact Gregg Polsky. 

Thursday, February 23: Ruth Mason (Virginia; Google Scholar) will present Bounded Extraterritoriality (with Michael Knoll (Penn)) as part of the Duke Tax Policy Seminar. If you would like to attend, please contact Lawrence Zelenak.

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Clausing Presents Capital Taxation And Market Power Today At Indiana

Kimberly Clausing (UCLA; Google Scholar) presents Capital Taxation And Market Power at Indiana-Maurer today as part of its Tax Policy Colloquium hosted by Leandra Lederman:

In recent decades, market power has increased substantially, according to multiple measures that describe industry concentration, mark-ups, and business profitability. While market power can generate benefits, it also raises vexing policy concerns, including the potential for adverse effects on labor markets, income inequality, and the dynamism of market competition. The concept of market power also has implications for how we conceptualize capital income, making it important to distinguish between normal and above-normal returns to capital. The tax system taxes both types of returns to capital, but often imperfectly and incompletely. 

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van Dijk Presents Eviction and Poverty in American Cities Today At UCLA

Winnie van Dijk (Harvard, NBER) presents Eviction and Poverty in American Cities (with Robert Collinson (Notre Dame; Google Scholar), John Eric Humphries (Yale; Google Scholar), Nicholas Mader (Chapin Hall), Davin Reed (Federal Reserve Bank of Philadelphia; Google Scholar), Daniel Tannenbaum (Nebraska; Google Scholar)) at UCLA today as part of its Colloquium on Tax Policy and Public Finance hosted by Kirk Stark and Jason Oh:

More than two million U.S. households have an eviction case filed against them each year. Policymakers at the federal, state, and local levels are increasingly pursuing policies to reduce the number of evictions, citing harm to tenants and high public expenditures related to homelessness. We study the consequences of eviction for tenants using newly linked administrative data from two large cities.

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Utah Symposium On Rethinking, Reimagining, And Reshaping Legal Education

Symposium, #IncludeTheirStories: Rethinking, Reimagining, and Reshaping Legal Education, 2022 Utah L. Rev. 709-890:

• Leslie P. Culver (Utah; Google Scholar) & Elizabeth A. Kronk Warner (Dean, Utah; Google Scholar), #IncludeTheirStories: Rethinking, Reimagining, and Reshaping Legal Education, 2022 Utah L. Rev. 709 
• Danielle Conway (Dean, Penn State-Dickinson), Antiracist Lawyering in Practice Begins with the Practice of Teaching and Learning Antiracism in Law School, 2022 Utah L. Rev. 723
• Tom I. Romero II (Denver), A Brown Buffalo’s Observations on Color (Blindness), Legal History, and Racial Justice in the Rocky Mountain West, 2022 Utah L. Rev. 751
• Robert Razzante (Western Washington) & Breanta Boss (Palmer Law), DEI in the Legal Profession: Identifying Foundational Factors for Meaningful Change, 2022 Utah L. Rev. 785
• Steven A. Dean (Brooklyn), Filing While Black: The Casual Racism of the Tax Law, 2022 Utah L. Rev. 801 
• Phyllis Taite (Oklahoma City) & Nicola "Nicky" Boothe (Boston University), Teaching Cultural Competence in Law School Curricula: An Essential Step to Facilitate Diversity, Equity, & Inclusion in the Legal Profession, 2022 Utah L. Rev. 813

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Galle & Shay Present Admin Law And The Crisis Of Tax Administration Today At Duke

Brian Galle (Georgetown; Google Scholar)& Stephen Shay (Boston College; Google Scholar) present Admin Law and the Crisis of Tax Administration, 101  N.C. L. Rev. __ (2023) (reviewed by Blaine Saito (Northeastern; Google Scholar) here) at Duke today as part of its Tax Policy Seminar hosted by Lawrence Zelenak:

The IRS is struggling. Phone calls from confused taxpayers ring unanswered, paper returns pile up, aggressive tax filers are confident they are unlikely to be audited. Congress piles new responsibilities on the agency while (so far) slashing its budget to modern lows.

This is a strange time, then, to launch perhaps the largest-ever experiment in tax administration. Yet that is what some courts and the Trump White House, encouraged by some tax law scholarship, have begun. In at least four distinct ways, IRS and its regulatory partner the U.S. Treasury are now facing greater procedural obstacles to their efforts to guide and constrain the taxpaying public. 

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Hasen: Nonprofit Law As The Tool To Kill What Remains Of Campaign Finance Law: Reluctant Lessons From Ellen Aprill

Richard L. Hasen (UCLA; Google Scholar), Nonprofit Law as the Tool to Kill What Remains of Campaign Finance Law: Reluctant Lessons from Ellen Aprill, 46 Loy. L.A. L. Rev. __ (2023):

This brief Essay was prepared for a festschrift honoring the work of Professor Ellen Aprill. I explain in the Essay how Professor Aprill’s deep knowledge of nonprofit and tax law and her relentless intellectual honesty leads her (and us) to an unhappy place: a world in which many of the remaining regulations of money in politics could well be struck down as unconstitutional or rendered wholly ineffective by a Supreme Court increasingly hostile to the goals of campaign finance law and extremely solicitous of religious freedom. Just as the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission used the First Amendment rights of nonprofit corporations to open up direct political spending by large, for-profit corporations, additional arguments about the rights of charitable institutions and other nonprofits will be used to push further judicial deregulation of the political process for all.

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The Buffalo Model And ABA Standard 303(c): Bias, Cross Cultural Competency, And Antiracism

Kim Diana Connolly (SUNY-Buffalo) & Elisa Lackey (SUNY-Buffalo), The Buffalo Model: An Approach to ABA Standard 303(c)'s Exploration of Bias, Cross Cultural Competency, and Antiracism in Clinical & Experiential Law, 70 Wash. U. J.L. & Pol'y __ (2023):

This essay offers initial contemplations shortly after the inception of a new opportunity for clinical and experiential legal education in the United States: the addition of 303(c) to the ABA standards, requiring that law schools “shall provide education to law students on bias, cross-cultural competency, and racism.” This new law school accreditation obligation concretizes what many clinicians, externship directors, and other experiential teachers have been doing for decades: teaching inclusion, justice, and belonging. Clinical Legal Education programs historically have centered teaching student attorneys about cultural competency, anti-bias, diversity, difference, and related issues.

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Smart Presents Distributionally Sensitive Cost Benefit Analysis Today At Toronto

Michael Smart (Toronto; Google Scholar) presents Distributionally Sensitive Cost Benefit Analysis at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series hosted by Benjamin Alarie:

I review the case for and against the use of a distributionally weighted sum of gains and losses in cost-benefit analysis. I conclude that distributional weighting is logically consistent and ethically justified in cases where policy reforms have direct effects on inequality in pre-tax incomes of individuals. I show how distributional weights can be calculated for Canada using information on income inequality and effective tax rates in the income tax system. I apply distributional weights to evaluate a recent proposed merger with presumed anticompetitive effects in Canada’s telecommunications sector.

Concluding Remarks
The methods described here offer a robust, data-driven approach for determining how the potentially adverse distributional consequences of mergers could be taken into account in evaluating the efficiencies defence under Section 96 of the Competition Act. Examining effective tax rates by income group, I found that the Canadian tax system exhibits a relatively modest preference for redistribution from rich to poor, reflected in a distributional weight on the richest group that is about 30% lower than average.

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Doran Presents Executive Compensation And Corporate Governance Today At Georgetown

Michael Doran (Virginia; Google Scholar) presents Executive Compensation and Corporate Governance (reviewed by Sloan Speck (Colorado; Google Scholar) here) at Georgetown today as part of its Tax Law and Public Finance Workshop hosted by Emily Satterthwaite and Dayanand Manoli:

Over the past four decades, Congress has repeatedly used tax policy to address executive-compensation practices, most notably through golden-parachute penalty taxes (enacted in 1984), a $1 million cap on compensation deductions (enacted in 1993 and expanded in 2017), and penalty taxes on nonqualified deferred compensation (enacted in 2004). The critical assumptions underlying these efforts are, first, that certain features of executive pay represent a failure of corporate governance and, second, that tax policy can correct that failure. The first assumption may or may not be correct; the theoretical and empirical arguments about it remain unresolved. But the second assumption is increasingly untenable. Penalty taxes have been largely ineffective in changing executive-compensation practices in the ways that legislators intend; in many instances, they actually exacerbate the features of executive pay that concern Congress in the first place. 

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Oklahoma Symposium: A Life’s Work—In Memory of Professor Jonathan B. Forman

Symposium, A Life’s Work: In Memory of Professor Jonathan B. Forman, 74 Okla. L. Rev. 527-732 (2022):

• Katheleen Guzman (Dean, Oklahoma), Opened Doors: A Tribute to Jon Forman, 74 Okla. L. Rev. ix (2022)
• Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina E. Olson (Center for Taxpayer Rights), Reducing Administrative Burdens to Protect Taxpayer Rights, 74 Okla. L. Rev. 527 (2022)
• Patricia A. Cain (Santa Clara), Taxation of Tort Damages, 74 Okla. L. Rev. 587 (2022)
• Susan N. Gary (Oregon), Conflicts and Opportunities for Pension Fiduciaries in the ESG Environment, 74 Okla. L. Rev. 607 (2022)
• Kimberly S. Krieg (San Diego; Google Scholar) & Stephanie L. Tang (Baylor), Calculating “Income” for Domestic Support Obligations in the Wake of the COVID-19 Pandemic, 74 Okla. L. Rev. 653 (2022)

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Choi Presents Subjective Costs Of Tax Compliance Today At UC-San Francisco

Jonathan Choi (Minnesota; Google Scholar) presents Subjective Costs of Tax Compliance (with Ariel Jurow Kleiman (Loyola-LA; Google Scholar)) at UC-San Francisco today as part of its Tax Policy Colloquium hosted by Manoj Viswanathan:

This Article introduces and estimates “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing a tax return. The experiment revealed that taxpayers are more concerned about inadvertent mistakes in their tax filings than by the time spent on compliance. Respondents also only ascribed meaningful value to eliminating all tax compliance work; they ascribed essentially no value to marginal time savings. Additionally, eliminating tax compliance time for high-income taxpayers and taxpayers with complex returns is not worth much more than eliminating tax compliance time for low-income taxpayers with simple returns.

These findings have important implications for theory and policy. From a theoretical perspective, these survey results call into question the nearly universal practice of using market wages to monetize the time that people spend on tax compliance work. 

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Hellerstein & Appleby: The Internet Tax Freedom Act At 25

Walter Hellerstein (Georgia) & Andrew D. Appleby (Stetson; Google Scholar), The Internet Tax Freedom Act at 25, 107 Tax Notes St. 7 (Jan. 2, 2023):

In October 1998, Congress enacted the Internet Tax Freedom Act (ITFA), a temporary three-year “moratorium” on the enactment of new state and local “taxes on Internet access” and on “multiple or discriminatory taxes on electronic commerce.” After extending the act temporarily several times, Congress, in 2016, finally and controversially struck the language temporarily extending the act, thereby making it permanent.

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Lesson From The Tax Court: Mortgage Interest Deductions When The Payor Is Not The Borrower

Families can be complicated.  Tax law can be complicated.  Put those complications together and you get today’s lesson: family obligations to pay interest on a mortgage don’t support the §163 deduction even though they might, informally, be as binding as legal obligations.

In Hrach Shilgevorkyan v. Commissioner, T. C. Memo. 2023-12 (Jan. 23, 2023) (Judge Ashford), the taxpayer paid half the interest due on a mortgage, but he was not the borrower.  The loan had been obtained by his brothers.  And while the complex rules for §163 allow interest deductions in some circumstances when the payor is not also the borrower, this taxpayer was unable to show how the complexities of his particular family arrangement fit into the complexities of the statute.  Details below the fold.

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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. The #1 paper is now #889 among 17,359 tax papers in all-time downloads: :

1. [717 Downloads]  The Declining Appeal of Inherited Retirement Accounts, by Richard L. Kaplan (Illinois; Google Scholar)
2. [586 Downloads]  Pillar 2, Fiat, and the EU Unanimity Rule on Tax Matters, by Rita de la Feria (Leeds)
3. [387 Downloads]  State Strategic Responses to the GloBE Rules, by Heydon Wardell-Burrus (Oxford) (reviewed by David Elkins (Netanya; (Google Scholar) here)
4. [237 Downloads]  Textualism, The Role And Authoritativeness Of Tax Legislative History, And Stanley Surrey, by George Yin (Virginia) (reviewed by Sloan Speck (Colorado; Google Scholar) here)
5. [111 Downloads]  Multistate Business Entities, by Andrew Appleby (Stetson; Google Scholar) & Tomer Stein (Stetson)

Gershon Presents Top Five Code Sections That Should Not Exist At Alabama

Richard Gershon (Mississippi) presented Top Five Code Sections That Should Not Exist at Alabama this week: 

As a fan of the strange and unusual, I am a fan of YouTube. YouTube channels often feature top 5’s. For example, the Top 5 Unknowns often features videos like "The Five Photos That Should Not Exist." I find it so interesting that even though those photos should not exist, they in fact do exist. Since every aspect of life eventually leads back to tax law, I realized that there are at least five sections of the Internal Revenue Code (IRC) that should not exist, but nevertheless do exist. In true YouTube style, this article will discuss each of these five sections in order from least compelling to most compelling and will include one honorable mention.

The sections I have chosen in this article are those that have always bothered me when I taught them in my tax classes. The article will address the flaws in policy, application, or both of each of the code sections discussed. So, turn out the lights and grab some popcorn because tax law is always entertaining.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Admin Law And The Crisis Of Tax Administration By Galle & Shay

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Brian Galle (Georgetown; Google Scholar) & Stephen Shay (Boston College; Google Scholar), Admin Law and the Crisis of Tax Administration, 101  N.C. L. Rev. __ (2023).

One of the major issues in taxation is the application of administrative law principles, derived from the Administrative Procedure Act (APA) and the case law interpreting it. Scholars like Professor Kristin Hickman have persuasively shown that tax is not exceptional, and the federal courts, starting with Mayo Foundation for Medical Education & Research v. United States, have followed. This author too has fallen closer to the line of applying these administrative law doctrines to the IRS and Treasury’s administrative actions. But in their article, Admin Law and the Crisis of Tax Administration, Professors Brian Galle and Stephen Shay force us to grapple with some of the effects of this revolution. 

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Next Week’s Tax Workshops

Tuesday, February 14: Jonathan Choi (Minnesota; Google Scholar) will present Subjective Costs of Tax Compliance (with Ariel Jurow Kleiman (Loyola-LA; Google Scholar)) as part of the UC-San Francisco Tax Policy Colloquium. If you would like to attend, please contact Manoj Viswanathan.

Tuesday, February 14: Michael Doran (Virginia; Google Scholar) will present Executive Compensation and Corporate Governance (reviewed by Sloan Speck (Colorado; Google Scholar) here) as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Emily Satterthwaite and Dayanand Manoli.

Wednesday, February 15: Michael Smart (Toronto; Google Scholar) will present Distributionally Sensitive Cost Benefit Analysis as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Benjamin Alarie. 

Thursday, February 16: Owen Zidar (Princeton; Google Scholar) will present The Health Wedge and Labor Market Inequality (with Amy Finkelstein (MIT; Google Scholar), Casey McQuillan (Ph.D. Candidate, Princeton), and Eric Zwick (Chicago; Google Scholar)) as part of the OMG Transatlantic Tax Talks. There is no registration required for this event. 

Thursday, February 16: Winnie van Dijk (Harvard, NBER) will present Eviction and Poverty in American Cities (with Robert Collinson (Notre Dame; Google Scholar), John Eric Humphries (Yale; Google Scholar), Nicholas Mader (Chapin Hall), Davin Reed (Federal Reserve Bank of Philadelphia; Google Scholar), Daniel Tannenbaum (Nebraska; Google Scholar)) as part of the UCLA Colloquium on Tax Policy and Public Finance. If you would like to attend, please contact Kirk Stark and Jason Oh.

Thursday, February 16: Brian Galle (Georgetown; Google Scholar) & Stephen Shay (Boston College; Google Scholar) will present Admin Law and the Crisis of Tax Administration as part of the Duke Tax Policy Seminar. If you would like to attend, please contact Lawrence Zelenak.

Friday, February 17: Kimberly Clausing (UCLA; Google Scholar) will present Capital Taxation And Market Power as part of the Indiana-Maurer Tax Policy Colloquium. If you would like to attend, please contact Leandra Lederman.

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