Paul L. Caron
Dean


Saturday, August 10, 2019

Has College Gotten Too Easy?

The Atlantic, Has College Gotten Too Easy?:

AtlanticWhen Jeff Denning, an economist at Brigham Young University, started looking closely at the data on college-completion rates, he was a bit perplexed by what, exactly, was driving this uptick. He and some of his BYU colleagues noticed that a range of indicators from those two decades pointed in the direction of lower, not higher, graduation rates: More historically underrepresented groups of students (who tend to have lower graduation rates) were enrolling, students appeared to be studying less and spending more time working outside of school, and student-to-faculty ratios weren’t decreasing. “We started thinking, What could possibly explain this increase?” Denning told me. “Because we were stuck with not being able to explain anything.”

Stuck, that is, until they started looking at what was happening with students’ GPAs. Despite the aforementioned trends among the college-going population, students were, on average, earning higher grades in their first year of college. “[GPAs are] going up, and as best we can tell, there’s not a good reason that they’re going up, in terms of student behavior or preparation or anything like that,” Denning said.

If grades are improving but there’s no reason to think that students have become better students, an interesting possibility is raised: The unassuming, academic way Denning puts it in a recent paper (co-authored with his BYU colleague Eric Eide and Merrill Warnick, an incoming Stanford doctoral student) is that “standards for degree receipt” may have changed. A less measured way of saying what that implies: College may have gotten easier.

Jeffrey T. Denning, Eric R. Eide & Merrill Warnick (BYU), Why Have College Completion Rates Increased?:

College completion rates declined from the 1970s to the 1990s. We document that this trend has reversed—since the 1990s, college completion rates have increased.

Figure 2

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August 10, 2019 in Legal Ed News, Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (3)

Friday, August 9, 2019

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews McCaffery's A Better Hope For Campaign Finance Reform

This week, Mirit Eyal-Cohen (Alabama) reviews Edward J. McCaffery (USC), A Better Hope for Campaign Finance Reform.

Mirit-Cohen (2018)

McCaffrey begins this Article with a gloomy picture of American politics—”dark money” has made the identity of mega-givers and the degree of their political contributions opaque. Referring to 2016 presidential and congressional election biggest givers, he blames the social and political issues in the U.S. to the role of money in politics. Many wealthy donors are spending huge sums to influence democratic politics—to buy politicians or political offices or laws. McCaffery has little hope of changing these facts of human nature.  He demonstrates how legislative, judicial and regulatory actions have failed in solving this problem. But not to worry because he has a plan. McCaffery proposes to utilize the tax system to reduce campaign spending by raising the pre-tax costs of political expenditures. Similar to other Pigouvian models like the cigarettes tax, raising the costs of harmful political activities through taxation will reduce their occurrence. He claims that political contributions is another example where taxation is more efficient in reducing undesired behavior than other regulatory measures or public education campaigns. Yet, his proposal is not exclusive to political campaign contributions. Here, too, he advances his longtime proposal to switch from an income-based to consumption-based tax system, also known as a progressive spending tax. In fact, he admits that there would be no change in the tax treatment of campaign contrition—there will be no provision in the reformed consumption tax system that is specific to political expenditures, other than rules similar to today’s disallowing them as ordinary business deductions or as charitable contributions.

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August 9, 2019 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

McCaffery: A Better Hope For Campaign Finance Reform

Edward J. McCaffery (USC), A Better Hope for Campaign Finance Reform:

There is too much money in American politics, and too much of it comes from too few citizens. Mega-donors like Sheldon Adelson or Tom Steyer make $100 million political expenditures every election cycle. Attempts to limit such large political contributions have failed at every level: judicially, legislatively, and administratively. Much of the academic literature has joined the real world’s sense of despair. This Article takes a new tack. By changing our tax system from an income to a consistent progressive spending tax, the true cost of political expenditures by mega-donors could increase tenfold.

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

New Technology, The Death Of The BigLaw Monopoly, And The Evolution Of The Computer Professional

Michael Guihot (Queensland), New Technology, the Death of the BigLaw Monopoly, and the Evolution of the Computer Professional:

Much has been written recently about new technology disrupting the traditional law firm model of providing legal services. Susskind and Susskind predicted the failure of professions, including the legal profession, due in large part to the external pressure of disruptive technology. However, concentrating blame on the technology is misguided; it blames the tool used to disrupt rather than the root causes of the disruption. In short, computers do not kill lawyers.

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August 9, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (0)

Todd: Phantom Income And Domestic Support Obligations

Timothy M. Todd (Liberty), Phantom Income and Domestic Support Obligations, 67 Buff. L. Rev. 365 (2019):

The tax code is designed to raise government revenue. Domestic support obligations (DSOs) — namely, child support and spousal support — are designed to ameliorate the financial burdens that arise upon divorce. To determine the amount of domestic support obligations, statutes often refer to commonly used taxation concepts, such as “income.”

Courts determining domestic support obligations have been confronted with the question of how to treat “phantom income” — that is, amounts that are includible as gross income under the federal tax code but that have not resulted in any actual current cash receipt. Individuals obligated to make domestic support payments have argued that phantom income should not be included when calculating or modifying such obligations because the individual’s ability to pay has not materially changed. This Article analyzes the intersection of federal tax law and domestic support obligations concerning phantom income.

This Article considers several solutions — judicial and legislative — to address the phantom income issue in the domestic support context.

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

Thursday, August 8, 2019

Wallace: Tax Policy And Our Democracy

Clint Wallace (South Carolina), Tax Policy and Our Democracy, 118 Mich. L. Rev. ___ (2019) (reviewing Camille Walsh (Washington), Racial Taxation: Schools, Segregation, and Taxpayer Citizenship, 1869–1973 (University of North Carolina Press 2018), and Anthony C. Infanti (Pittsburgh), Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves (MIT Press 2018)):

Racial SelfishTwo new books explore the many ways in which U.S. tax policies and tax systems have promoted social injustices and continue to do so. In Racial Taxation, Camille Walsh provides a vivid depiction of the under-scrutinized fiscal history of elementary through secondary education in the United States, from the post-Reconstruction era until San Antonio Independent School District v. Rodriguez. In Our Selfish Tax Laws, Anthony Infanti details how existing U.S. Federal tax policies manifest problematic power structures that exclude and disadvantage many if not most taxpayers. Together, these books dissect a variety of flawed tax structures and reveal that tax discrimination grounded in race, gender, heteronormativity, differences in physical ability, and, pervasively, power dynamics, are not a malignant tumor on an otherwise healthy body, but rather are a systemic, pathological affliction on the entire U.S. fiscal state. This essay reviews Walsh’s and Infanti’s work, and builds on the authors’ rich historical and analytical contributions to ask: how can tax policy be reformed so that, rather than betraying and undermining the foundations of American democracy, it works to strengthen democratic institutions and their connection with members of a democratic society?

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August 8, 2019 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Mindful Engagement And Relational Lawyering

Susan L. Brooks (Drexel), Mindful Engagement and Relational Lawyering, 48 Sw. L. Rev. ___ (2019):

Mindful engagement is a relational approach to mindfulness, and a mindful approach to being relational, in law and in life. It is about cultivating habits of mind and practices that can inform a wholehearted approach to lawyering, which means bringing our emotional and bodily awareness as well as our analytical minds fully into our work. Mindful engagement contemplates the interconnection and integration of engagement with oneself, with others interactively, and with communities and larger social institutions and systems.

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August 8, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (0)

Fiscal Democracy In The States: How Much Spending Is On Autopilot?

Tracy Gordon, Megan Randall, C. Eugene Steuerle, Aravind Boddupalli (Tax Policy Center), Fiscal Democracy in the States: How Much Spending is on Autopilot?:

Governors, lawmakers, and journalists often decry constitutional and statutory formulas, federal grant requirements, and court rulings they think excessively limit state budget decisions.

Some observers estimate as much as 70 percent of state spending is “on autopilot,” meaning these constraints are in place before proposals or negotiations begin.

But measuring predetermined state budget commitments is far from straightforward. The federal government explicitly defines “tax expenditures” and “mandatory spending” and reinforces these concepts through the annual budget process. In contrast, few states rigorously and transparently assess the long-term cost of tax breaks and spending programs that are either fixed in size or will grow automatically without policy changes.

In this report, we perform a first-of-its-kind analysis of how much spending was restricted or partially restricted in CaliforniaFloridaIllinoisNew YorkTexas, and Virginia from 2000 to 2015.

Key findings

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August 8, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Walker: Employer Losses And Deferred Compensation

David I. Walker (Boston University), Employer Losses and Deferred Compensation:

Most large public companies offer their executives the opportunity to defer the receipt and taxation of their salary or other current compensation until retirement or some other future date, and equity compensation, which also entails deferral of pay and taxation, constitutes a large fraction of the typical executive pay package. Conventional wisdom holds that employer net operating losses (NOLs) improve the joint economics of deferred and equity compensation (henceforth together "deferred compensation") for the parties. However, empirical studies provide little evidence of an association between employer NOLs and deferred compensation use. This paper focuses on two potential explanations for this apparent disconnect. First, this paper shows that the relationship between employer NOLs and the attractiveness of deferred compensation is more complex and less predictable than is generally recognized, that a large NOL position does not necessarily produce a larger driving force for use of deferred compensation, and that in some cases employer NOLs can actually result in poorer deferred compensation economics. As a result, some employers and executives may rationally choose to ignore employer NOLs when making compensation decisions. Second, even if companies are sensitive to the existence of employer NOLs when making compensation decisions, it is not clear that research methods currently in use would detect the sensitivity.

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August 8, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, August 7, 2019

Gamage: Five Key Research Findings On Wealth Taxation For The Super Rich

David Gamage (Indiana), Five Key Research Findings on Wealth Taxation for the Super Rich:

This essay summarizes five key findings from the author’s in-progress research evaluating the potential of wealth tax reform proposals for taxing the super rich. These five key findings are as follows:

  1. The existing U.S. tax system does a very poor job of meaningfully taxing the super rich.
  2. There are only two approaches for reform that could plausibly succeed in making it so that the U.S. tax system would meaningfully tax the super rich: wealth taxation and mark-to-market taxation (sometimes known as “accrual” taxation).
  3. Piecemeal reforms to the existing tax system that some have argued for as “progressive alternatives” to wealth tax reforms should be thought of as complements to wealth taxation rather than as competitors.
  4. Much of the public criticism of wealth tax reform proposals ignores recent legal scholarship on valuation methodologies and other implementation design options, to the extent that this criticism mostly only applies to outdated, “straw man” versions of how a modern wealth tax might be implemented.
  5. Concerns about the Supreme Court striking down wealth tax reforms as unconstitutional can be addressed by including fallback options in the wealth tax legislation.

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August 7, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Haneman: Intergenerational Equity, Student Loan Debt, And Taxing Rich Dead People

Victoria J. Haneman (Creighton), Intergenerational Equity, Student Loan Debt, and Taxing Rich Dead People:

Once upon a time, there was a generation of indentured servants called Millennials. They were beautiful and mysterious and clever and feckless, in the way that all young people can sometimes be. The Millennials had dreams of future careers in which they were near-mystical, all-powerful protectors of the planet, brunching on avocado toast, driving in electric cars, and eradicating golf courses from the earth. Droves of Millennials applied to universities, believing that a diploma was a barrier for entry to advance the careers of which they dreamt. Most were confronted with a conundrum: borrow to subsidize the dream career, with decades of (potentially unaffordable) payments when they were finally employed. The Generation Who Stole the World, commonly referred to as the Baby Boomers, had decided that unlimited access to debt was the most economically sound approach by which to offer equal opportunity in higher education — and the delectable irony of this tale is that the availability of debt caused (or at the very least, accompanied) the skyrocketing of costs. A vicious cycle resulted in an entire generation of educated Millennials having mortgaged their futures, and visibly sagging under the weight of the chains of their debt.

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August 7, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Tuesday, August 6, 2019

Cui: The Superiority Of The Digital Service Tax Over Significant Digital Presence Proposals

Wei Cui (University of British Columbia), The Superiority of the Digital Service Tax over Significant Digital Presence Proposals:

Responding to calls for reallocating taxing rights over multinationals’ profits to reflect the place of user value creation, the OECD recently announced a Program of Work to implement international tax reform. I use the European Commission’s 2018 proposal to introduce the “significant digital presence” concept into income tax treaties as an example of the type of approach the OECD favors, and argue that it is inferior to recently proposed digital services taxes (DSTs). DSTs directly address the question of where profits should be allocated and taxed, while SDP proposals subordinate this vital question to superfluous treaty conventions. Global tax coordination deserves better focal points.

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August 6, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Kahn: Return Of An Employee’s Claim Of Right Income

Douglas A. Kahn (Michigan), Return of an Employee’s Claim of Right Income, 163 Tax Notes 1819 (2019):

This brief article explains how the 2017 repeal of the miscellaneous itemized deduction affects the operation of section 1341 on an employee’s return of claim of right income.

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August 6, 2019 in Scholarship, Tax | Permalink | Comments (0)

Camp: The Sharp Corners Of ACA Premium Tax Credit Provisions

Bryan Camp (Texas Tech), The Sharp Corners of ACA Premium Tax Credit Provisions, 163 Tax Notes 2001 (June 24, 2019):

The Tax Court has started issuing more and more opinions dealing with disputes over the proper application of the Premium Tax Credit Provisions in §36B. Those opinions show that the Court views §36B as containing no wiggle room to deal with reasonable taxpayer errors in calculating their Premium Tax Credit (PTC). Multiple times one sees the Court writing phrases such as “We are not unsympathetic to petitioners’ plight; however, we are bound by the statute,” and “we cannot ignore the law to achieve an equitable end.”

The Court's doggedly textualist reading results in taxpayers getting hit with really big deficiencies, even when the error is someone else’s fault. Recent cases have done this, turning receipt of lump sum SSDI payments into a “gotcha” game that even reasonable taxpayers will lose if they make the §86(e) election to attribute a lump sum payment ratably over prior years.

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August 6, 2019 in Scholarship, Tax | Permalink | Comments (1)

Monday, August 5, 2019

Morse Reviews Fleischer & Hemel's The Architecture Of A Basic Income

Jotwell (Tax) (2016)Susan Morse (Texas), The Policy Maker’s Guide to a Universal Basic Income (JOTWELL) (reviewing Miranda Perry Fleischer (San Diego) & Daniel J. Hemel (Chicago), The Architecture of a Basic Income, 86 U. Chi. L. Rev. __  (2019) (reviewed by David Elkins (Netanya) here)):

Miranda Fleischer and Daniel Hemel have written a terrific article, The Architecture of a Basic Income, about a universal basic income, or UBI. They offer concrete policy advice grounded in philosophical priors. They successfully separate questions about fundamental policy design from questions about political packaging. Their paper should become a go-to resource for the increasing swell of interest in UBI policy. ...

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August 5, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Lesson From The Tax Court: Appeals Is Still Part Of The IRS, Really!

Tax Court (2017)I find it useful to think of tax administration as comprising two overarching functions: (1) determining tax liabilities and (2) collecting tax liabilities.  The IRS Office of Appeals (“Appeals”) supports both functions by mediating disputes between taxpayers and either the IRS exam function or collection function.  In Aldo Fonticiella v. Commissioner, T.C. Memo. 2019-74 (June 13, 2019), Judge Gerber teaches us that even though Appeals has a different (and wider) set of powers that often allow it to settle disputes without litigation, it still functions as an integral part of the IRS, no matter how many times Congress puts “Independent” in its title.

Taxpayers unhappy with Appeals look for creative ways to avoid its decisions.  In 2011, one such taxpayer argued that all Appeals work product violated the U.S. Constitution.  His theory was that Appeals Officers were “Officers of The United States” within the meaning of the U.S. Constitution.  That meant they had to be appointed by the President with the consent of the Senate.  Because they were not, they could not wield any power over taxpayers.  That made all their work illegal and without effect.  In Tucker v. Commissioner both the Tax Court (135 T.C. 114, 2010) and the D.C. Circuit (676 F.3d 1129, 2012) rejected the argument.  Not a single judge agreed with the taxpayer.

Creativity begets creativity.  In Fonticiella, Judge Gerber considers and rejects a companion argument, that Appeals is a “de facto independent agency” whose very existence is an affront to the U.S. Constitution.  While that is a loser argument today, it may become a winner eventually as Congress keeps trying to transform Appeals into a mini-me Tax Court.  The recently enacted Taxpayer First Act, P.L. 116-25, moves in that direction, although not far enough, IMHO, to affect the rationale for Judge Gerber’s decision.  You can read more about it below the fold.

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August 5, 2019 in Bryan Camp, IRS News, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Sunday, August 4, 2019

Fall 2019 Law Review Article Submission Guide

SubmissionsNancy Levit (UMKC) & Allen Rostron (UMKC) have updated their incredibly useful document, which contains two charts for the Fall 2019 submission season covering 203 law reviews.

The first chart (pp. 1-52) contains information gathered from the journals’ websites on:

  • Methods for submitting an article (such as by e-mail, ExpressO, regular mail, Scholastica, or Twitter)
  • Any special formatting requirements
  • How to request an expedited review
  • How to withdraw an article after it has been accepted for publication elsewhere

The second chart (pp. 53-59) contains the ranking of the law reviews and their schools under six measures:

  • U.S. News: Overall Rank
  • U.S. News: Peer Reputation Rating
  • U.S. News: Judge/Lawyer Reputation Rating
  • Washington & Lee Citation Ranking
  • Washington & Lee Impact Factor
  • Washington & Lee Combined Rating

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August 4, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (0)

The Top Five New Tax Papers

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

  1. [517 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  2. [249 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  3. [221 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  4. [150 Downloads]  Fixing the Five Flaws of the Tax Cuts and Jobs Act, by Kimberly Clausing (Reed College)
  5. [122 Downloads]  Back to Basics: Rethinking Normative Principles in International Tax, by Shay Shimon Moyal (S.J.D. 2020, Michigan)

August 4, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Friday, August 2, 2019

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Kysar's Unraveling The Tax Treaty

This week, David Elkins (Netanya) reviews Rebecca M. Kysar (Fordham), Unraveling the Tax Treaty, 103 Minn. L. Rev. __ (2019).

Elkins (2018)Tax treaties are a ubiquitous feature in the landscape of international taxation, with several thousand bilateral instruments operating to regulate the taxing power of their signatories. However, in recent years, scholars have begun to challenge the century-old principles underlying the tax treaty. Some of these challenges concern the capacity of an institution formed in the aftermath of the First World War to handle our digital and much more globalized economy. Other challenges concern the role of the tax treaty in protecting the interests of wealthier countries.

The bulk of Professor Rebecca Kysar’s essay is dedicated to a critical examination of the tax treaty, as currently constituted. Tax treaties have been justified as tools for preventing double taxation, combatting tax evasion, inhibiting double non-taxation, encouraging foreign direct investment, respecting comity, providing certainty and predictability, institutionalizing non-discrimination, and binding governments to follow good tax policy even when confronted with the demands of political expediency. Professor Kysar addresses each of these issues in turn. 

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August 2, 2019 in David Elkins, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

Thursday, August 1, 2019

Trump’s Lasting Tax Policy Legacy Is Lowered Tax Morale

Andrew Leahey (Tax LL.M. 2019, NYU), Trump Tax Games: Lowered Tax Morale as Trump’s Lasting Tax Policy Legacy:

The Trump administration’s most permanent change to tax policy will not come in the form of executive action or signature legislation, but will stem from the way in which Trump himself has undermined tax compliance and lauded tax evasion — both in words and by example. These effects are not easily mitigated, as unlike tax rates there is no political or legislative mechanism through which social norms can be effectively changed.

August 1, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (3)

Wednesday, July 31, 2019

Johnson: The Estate Tax Gap

Calvin H. Johnson (Texas), The Estate Tax Gap, 163 Tax Notes 1479 (June 3, 2019):

The Internal Revenue Code provides that all property transferred by reason of death shall be included in the gross estate whether the property is real or personal, tangible or intangible and wherever located. The IRS Statistics of Income, however, indicates that estate and gift tax reaches only 25% of the IRS would expect to collect if wealth transferred at death were included in full in the gross estate. The paper uses calculations based on the Saez and Zucman statistics of wealth, and defends those statistics as the best for estate tax purposes. The rest or 75% of value is lost to undervaluation of the property transferred. The articles suggests some simple steps to combat undervaluation, including ignoring temporary restrictions the decedent has added to the property to suppress its supposed value, and delaying the valuation date until the decedent’s retained interest have expired. But the talent of the estate planning bar is such that we should not expect full and fair valuation of property transferred by reason of death.

See also Paul L. Caron (Dean, Pepperdine) & James R. Repetti (Boston College), The Estate Tax Non-Gap: Why Repeal a 'Voluntary' Tax?, 20 Stan. L. & Pol'y Rev. 153 (2009)

July 31, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Tuesday, July 30, 2019

Participation In Undergraduate Mock Trial Programs And Law School GPA

Teresa Nesbitt Cosby (Furman University), To the Head of the Class? Quantifying the Relationship Between Participation in Undergraduate Mock Trial Programs and Student Performance in Law School, 92 St. John's L. Rev. 797 (2018):

This Article seeks to answer the question of whether students who engage in undergraduate mock trial competitions gain a competitive advantage in law school. The Article will examine the pedagogy of experiential learning methods by analyzing how student performance in undergraduate school compares to how these same students perform in law school, and, importantly, whether these students are gainfully employed in a law-related career after law school. This is accomplished by conducting four interviews with Furman alumni who participated in the undergraduate mock trial program during their tenures, and a survey targeting law school students and recent graduates who participated in mock trial and those who did not participate by comparing LSAT scores, law school class standing, job market success, and other related factors. As a result of this study, this Article qualitatively and quantitatively discusses the benefits and detriments of an undergraduate mock trial experience in relation to successful law school performance and subsequent legal careers.

Conclusion. Mock trial is a competitive intellectual activity engaged in by very smart people. The average undergraduate grade point average of participants is 3.51 and the average SAT scores are between 1200-1400 for critical reading and math, which places these students in the 751 percentile of all test takers nationally. Just as mock trial students perform at a higher academic level than the majority of students who sat for the SAT and ACT, so do all law students who participated in the survey. The data shows that very smart students participate in mock trial and very smart students go to law school. The LSAT scores of students also showed similar results where the scores of all law students and students who participated in mock trial were within the same ranges. Finally, law school class ranking and law review participation, which are indicators of how well a student performs when compared to other students in their law school class, show that there is no significant difference between the academic performance of non-mock trial law school students and students who did participate in mock trial. The data shows that the majority of students who participate in mock trial do so because they think it will help them with their academic performance in law school. However, this belief is not supported by the data. Rather, the data show that there is no significant academic advantage for mock trial participants over their nonmock trial colleagues. Therefore, students may want to evaluate whether this activity will help them to achieve their goals. This conclusion is supported by the observations of Audrey, who felt that mock trial was not a good tool to prepare a student for the pedagogical process of law school.

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July 30, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (1)

Borden: Measuring Partners’ Capital Interests And Profits Interests

Bradley T. Borden (Brooklyn), Partnership-Related Relatedness: Measuring Partners’ Capital Interests and Profits Interests:

Section 707(b)(1) provides that two partnerships are related if the same persons own more than 50% of the partnership’s capital interests or profits interests. Even though numerous sections of the Internal Revenue Code rely upon that definition of partnership relatedness, the law does not provide meaningful guidance for measuring capital and profits interests. Measuring such interests in partnerships with distribution-dependent equity structures is particularly challenging because rights to profits can vary from tier-to-tier in distribution waterfalls. Focusing on measuring profits interests in partnerships, this article presents five methods for measuring such interests: (1) the max-out approach, (2) the capital-only liquidation approach, (3) the capital-plus liquidation approach, (4) the current-profits approach, and (5) the projected-profits approach. With no guidance in this area favoring any approach, observers may conclude that any of the approaches could be used to measure profits interests.

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

Do Corporate Taxes Affect Executive Compensation?

Tobias Bornemann (Vienna University), Martin Jacob (WHU - Otto Beisheim School of Management) & Mariana Sailer (Vienna University), Do Corporate Taxes Affect Executive Compensation?:

The limitation of executive compensation has been a matter of public and policy debate for at least 20 years. We examine a first-time regulatory action where the deductibility of the total value of executive compensation is limited and unavoidable. We find that, rather than reduce remuneration, companies reduce precautionary savings, thereby increasing risk. This suggests that firms pass on the burden of increased taxes to shareholders. Our results shed light on the effects of reforms similar to the U.S. Tax Cuts and Jobs Act of 2017 and contribute to prior findings that argue for proactive regulation to limit executive compensation.

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

Monday, July 29, 2019

Brooks Reviews Feminist Judgments: Rewritten Tax Opinions

Kim Brooks (Dalhousie), Will Feminist Judges Really Make a Difference? (JOTWELL) (reviewing Bridget J. Crawford (Pace) & Anthony C. Infanti (Pittsburgh), Feminist Judgments: Rewritten Tax Opinions (Cambridge University Press 2017)):

Feminist JudgmentsFeminist judgments projects originate in Canada. ... The first volume of American re-writes focused on decisions of the US Supreme Court. Surprising only to people who do not teach tax, the next volume of American re-writes takes up tax opinions. Released on December 28, 2017, as an invitation to continue holiday festivities, a volume edited by Bridget Crawford and Anthony Infanti serves up a veritable buffet of delights. Eleven rewritten American tax opinions comprise the volume. Six are rewritten Supreme Court decisions, one if a rewritten federal circuit court opinion, and four are rewritten Tax Court opinions.

The end result is spectacular. I want to draw attention to two features in this short review. These features are not tied, given this more general audience, to the tax context of the decisions. That’s worth underlining: this is a volume that is worth reading for scholars in any area of law with an interest in feminist legal theory and practice and how feminists approach legal and factual questions.

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July 29, 2019 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

China's 2018 Individual Income Tax Reform: A Global Perspective

Yue Dai (Oxford), China's 2018 Individual Income Tax Reform: A Global Perspective, 94 Tax Notes Int'l 849 (May 27, 2019):

This article analyzes China’s 2018 individual income tax reforms, discussing how the changes fit with China’s unique tax culture. It also compares China’s evolving tax system with the tax systems in the United States and the United Kingdom, considering how their experiences can help guide China’s reforms and, more broadly, how China’s tax system fits into the global tax environment.

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

Lesson From The Tax Court: How A New Work Location Becomes A Tax Home

Tax Court (2017)The Bureau of Labor Statistics says here that almost half of U.S. families headed by a married couple were two-earner households in 2018.  Having a two-earner household has many advantages over a one-earner household, the most obvious one being more income.  Today’s lesson, however, is a cautionary one.  Two rules about tax homes may lessen the take-home earnings of the second income: the rule about married couples and the rule about temporary employment.

In Hector Baca and Magdalena Baca v. Commissioner, T.C. Memo. 2019-78 (June 26) (Judge Holmes), the couple lived in El Paso where both had worked.  In 2011 Mr. Baca got a new job in Midland, a city some 300 miles away.  But it was an on-call job, where any one job call could be his last.  At issue for tax years 2012 and 2013 was whether he could deduct his travel costs between El Paso and Midland.  Judge Holmes said no.  The fact that Ms. Baca's job remained in El Paso did not affect the location of Mr. Baca's tax home.  Married taxpayers can have two tax homes and Mr. Baca's was Midland.  Thus Mr. Baca's costs of Midland travel and lodging could not be deducted from the money he made there.  That reduced the advantage of this married couple's second income.  Details below the fold.

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July 29, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Today's Tax Panel At SEALS

Tax panel today at the 2019 SEALS Annual Conference in Boca Raton, Florida:

SEALs Logo (2013)New Tax Scholars Workshop
This workshop gives New Scholars the opportunity to present a work-in-progress in a welcoming and supportive environment and to receive feedback on their presentation from more senior scholars in their fields. New Scholars are also assigned a mentor. The program is open to junior faculty at member schools. New Scholars are nominated to participate in the New Scholars Workshop by the deans of their respective law schools.

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

Sunday, July 28, 2019

The Top Five New Tax Papers

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

  1. [497 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  2. [237 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  3. [204 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  4. [143 Downloads]  Fixing the Five Flaws of the Tax Cuts and Jobs Act, by Kimberly Clausing (Reed College)
  5. [117 Downloads]  Back to Basics: Rethinking Normative Principles in International Tax, by Shay Shimon Moyal (S.J.D. 2020, Michigan)

July 28, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Friday, July 26, 2019

Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Crawford's Magical Thinking And Trusts

This week, Hayes Holderness (Richmond) reviews Bridget J. Crawford (Pace), Magical Thinking and Trusts, 50 Seton Hall L. Rev. ___ (2019).

Holderness (2017)

Wealth inequality is a major concern in today’s United States. As wealth concentrates among the super-wealthy, lawmakers, academics, and commentators have proposed ways to diffuse that wealth, often through tax reform. Wealth remains concentrated in part through the use of legal rules and entities, perhaps in ways that lead to unintended results. Here there be trusts. Trusts—particularly family trusts—have long been a major tool of wealth conservation and potential tax avoidance. So when the Supreme Court heard this year’s Kaestner case questioning North Carolina’s authority to tax the income of a family trust, many hoped that the Justices would help dismantle the tax avoidance tool by blessing the state’s taxing authority.

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July 26, 2019 in Hayes Holderness, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (2)

Kysar: Dynamic Legislation

Rebecca M. Kysar (Fordham), Dynamic Legislation, 167 U. Pa. L. Rev. 809 (2018):

To overcome congressional gridlock, lawmakers have developed devices that, under certain conditions, provide easier paths to policy change. Procedural mechanisms may eliminate the threat of filibuster and other barriers to legislating. Laws may prompt Congress to act through sunset dates, penalties like sequestration, or other undesirable policy outcomes. Alternatively, the legislative product itself may spontaneously update without further action by Congress, a category I label “dynamic legislation.” For instance, during consideration of recent tax legislation, lawmakers proposed that certain tax cuts be automatically ratcheted down if the bill failed to generate sufficient economic growth and that delayed tax increases not go into effect if revenue hurdles were met.

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July 26, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Trump Was Right: Endowment Tax On Wealth Accumulation At Elite Colleges Will Curb Inequality

Mae C. Quinn (Florida), Wealth Accumulation at Elite Colleges, Endowment Taxation, and the Unlikely Story of How Donald Trump Got One Thing Right, 54 Wake Forest L. Rev. 451 (2019):

President Donald Trump has declared war on immigrants, diversity, and those who dare to dissent. Rooted in resentments about who people are, where they were born, and what they believe, these executive-led assaults are dangerous developments in the modern era. However, in the course of Trump's many retrograde tirades, he has somehow managed to get one thing right—too many elite private colleges in the United States, considered nonprofit entities, have amassed way too much wealth.

This Article recounts this unlikely story, including how the Trump Administration's 2017 endowment tax could work to advance diversity. The new endowment tax penalizes private colleges for stockpiling assets. In response, potentially impacted universities have argued they are victims of an unfair conservative conspiracy intended to target liberal ideology. But the data demonstrates that this is not true. And concerns about rich colleges hoarding their resources have come from both the right and the left.

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July 26, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Thursday, July 25, 2019

Morse: When Robots Make Legal Mistakes

Susan C. Morse (Texas), When Robots Make Legal Mistakes, 72 Okla. L. Rev. 213 (2019):

The questions presented by robots’ legal mistakes are familiar to legal scholarship because they are examples of the legal process inquiry described by Hart and Sacks. This inquiry asks when the law will accept decisions as final, even if they are mistaken. Legal decision-making robots include market robots and government robots. In either category, they can make mistakes of undercompliance or overcompliance.

Some robot mistakes are more reviewable than others. The least reviewable kind of mistake is a market robot’s overcompliance mistake. A government robot’s undercompliance mistake is also relatively unlikely to be challenged. On the other hand, a market robot’s undercompliance mistake is open to a government enforcement challenge, and a government robot’s overcompliance mistake is open to a challenge from an aggrieved regulated party.

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July 25, 2019 in Scholarship, Tax | Permalink | Comments (0)

The Taxation Of Undocumented Immigrants

Nneka Obiokoye (Holland & Hart, Denver), Taxation of Undocumented Immigrants: The Uneasy Connection Between Regulating the Undocumented Immigrant and Fostering Illegal Activity, 2 J. Bus. Entrepreneurship & L. 359 (2018):

The volume of illegal immigration to the United States has been a raging issue in recent years, posing a significant issue for debates during the 2016 presidential election and an important policy concern for the Trump administration. Indeed, this issue was arguably the strongest point of contention among the 2016 presidential candidates and may have largely influenced the results of that election. While the recent increase in terrorist activity accounts for some of the controversy, a large part of the problem is that the average American believes that undocumented immigrants have a parasitical effect on the economy. In other words, they believe that immigrants take away from socio-economic infrastructure—such as welfare, health care, and education benefits—without contributing to society. Factual evidence tends to suggest otherwise, as statistics show that undocumented immigrants do, in fact, contribute a significant amount of federal and state revenue in taxes.

This article seeks to correct some of the negative perceptions held by the general public pertaining to undocumented immigrants, by drawing attention to four major points.

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July 25, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Millennials In The Legal Academy: 'Innovative Narcissists Lead The Way'

Ashley Krenelka Chase (Stetson), Upending the Double Life of Law Schools: Millennials in the Legal Academy, 44 U. Dayton L. Rev. 1 (2018):

This article discusses Holloway and Friedland’s vision of the law school of 2025 [The Double Life of Law Schools, 68 Case W. Res. L. Rev. 397 (2018)], with a focus on the need for technology education and a cultural shift in the legal Academy and the law school curriculum. It surveys the landscape of millennials as both students and employees, briefly describing their strengths and weaknesses in both arenas.

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July 25, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (0)

The Double Life Of Law Schools

Ian Holloway (Dean, Calgary) & Steven Friedland (Elon), The Double Life of Law Schools, 68 Case W. Res. L. Rev. 397 (2018):

The law school of 2025 will soon appear around the corner. An increasingly asked question is what will legal education look like? Will it look like the Langdellian model of the past 120 years, centered on the coverage of appellate case reports, leavened by a modest degree of experiences and some tweaks? Or will its shape transmogrify, becoming a blend of technology, Carnegie, and a redesigned marketplace?

Our view is that by the year 2025, law school will indeed be dramatically different. But how different depends on who wins the war between the traditional education, tracing back to the days of Langdell in the 1870s, and the repositioned drivers influencing legal education today from inside and out. In a word, we are living in a time of struggle — struggle for control of the soul of legal education.

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July 25, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (0)

Financial Innovation, Tax Law, And The Making Of The Contemporary Art Market

Michael W. Maizels (Harvard metaLAB) & William E. Foster (Arkansas), The Gallerist’s Gambit: Financial Innovation, Tax Law, and the Making of the Contemporary Art Market, 42 Colum. J.L. & Arts 479 (2019):

This essay presents an account of an important moment in the emergence of the market for Pop art that was facilitated in part by a distinctly accommodating legal environment. Although Abstract Expressionism is commonly credited with causing American art’s ascendance onto the world stage immediately after World War II, its international acclaim belied a precarious institutional and financial infrastructure for living American painters. It was only with the following generation of Pop and Minimalist artists that the United States developed a self-sustaining market for the work of contemporary American artists. A significant but largely overlooked factor in that continued success was the ability of art dealers to take advantage of the unique legal and regulatory environment of the 1960s. This essay focuses on the efforts of an enterprising art gallerist, Leo Castelli, to aggressively promote his stable of Pop artists through the development of several financial structures, including some designed to leverage the relatively generous income tax deductions and anemic enforcement regime of the time. In doing so, Castelli not only seeded the ground for the international ascendance of American visual art, but also engineered financial arrangements that fostered the development of a lucrative and resilient art market that endures to this day.

With the aim to provide insights into both the legal-political and the art historical registers, this essay describes a tax law framework that provides a key piece missing from the art historical puzzle. While historians have treated the explosion of the market for American contemporary art as a natural consequence of postwar American economic ascendance, insufficient attention has been paid to how this economic energy was channeled into the art market in the first place. Stated differently, Americans were newly flush with cash, but why did they start buying art with it?

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July 25, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Innovation: A New Key Discipline For Lawyers And Legal Education

Michele Beardslee DeStefano (Miami), Innovation: A New Key Discipline for Lawyers and Legal Education:

Over the past two years, I have interviewed hundreds of in-house and law firm lawyers from around the globe to explore the changing legal marketplace, expectations of clients, and innovation in law. One of my main conclusions is that we are experiencing an Innovation Tournament in Law and almost everyone is playing in it. As I explain in more detail in my book, Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law, driven by a combination of technology, socio-economics, and globality, we are witnessing innovation on almost every legal dimension, including how legal services are priced, packaged, sourced, and delivered. Importantly, this innovation is not only coming from legal tech startups and new law companies. Law firms, the Big Four, and corporate legal departments are creating innovations of their own including new services, products, tools, and, importantly, new processes. Even those that aren't creating innovations are playing in the Innovation Tournament by utilizing the innovations (or exapting them) to become more efficient and deliver better service. Although we are not yet seeing disruption in the law marketplace in the Clayton Christensen sense, all lawyers should care about the Innovation Tournament regardless and here's why:

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July 25, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (0)

Wednesday, July 24, 2019

Kleiman Presents Nonmarket Fees Today At Ohio State

Ariel Jurow Kleiman (San Diego) presents Nonmarket Fees at Ohio State today as part of its Summer Workshop Series:

Kleiman (2018)The public finance literature tells us that user fees will introduce market-like efficiency to public good provision. Meanwhile, criminal justice scholars note that criminal justice fees have run amok, causing crippling debt, undermining reentry efforts, and implicating civil rights and constitutional concerns. How can we reconcile these two literatures? This Article argues that it is precisely because criminal justice fees diverge from a traditional market-like structure that they have become so problematic. Specifically, because criminal defendants cannot consider the fee amount in their consumption of criminal justice services, consumer demand imposes no downward pressure on fee levels. The fees are thus allowed to balloon largely unfettered by the market-like restraints that apply to other fees. Absent market-like restraints, monopolistic agencies are free to pursue maximum fee revenue by increasing the fee level or the amount of services provided. Meanwhile, courts have diluted judicial fee requirements to accommodate increasingly creative user fee structures. These unbounded, nonmarket fees undermine agencies’ political legitimacy, lead to inefficient misallocation of public goods and services, cause exploitation of politically powerless groups, and impose significant human cost. The Article finishes by describing other fees that exhibit the same flawed structure, and by suggesting reforms to nonmarket fees.

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July 24, 2019 in Colloquia, Scholarship, Tax Analysts | Permalink | Comments (1)

Cross Border State Sales And Use Taxation After South Dakota v. Wayfair: A New Paradigm For E-Commerce

Norman S. Newmark, Rochelle F. Walk & Robert V. Willeford Jr., Cross Border State Sales and Use Taxation After South Dakota v. Wayfair: A New Paradigm for E-Commerce, 3 Bus. Entrepreneurship & Tax L. Rev. 16 (2019):

For over 50 years, U.S. Supreme Court Precedents held that state sales taxes could not be constitutionally applied against retailers with no physical presence in the taxing states. As a result, many states implemented use tax laws, essentially requiring each resident consumer to self-report and pay taxes on purchases made out of state retailers. However, these use tax laws were largerly ignored. Moreover, with the advent of online retail ("e-tailers") had no physical nexus to the states in which the products were delivered.

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July 24, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  This ranking includes downloads from two 30- and 35-page papers by 12 tax professors on the new tax legislation that garnered a lot of media attention (including the New York Times and Washington Post) and generated a massive amount of downloads (the papers are the most downloaded tax papers of all-time by over 200%).  See Brian Leiter (Chicago), 11 Tax Profs Blow Up The SSRN Download Rankings. (For some reason, Mitchell Kane (NYU) — the twelfth academic co-author of the two papers — is not included in the SSRN download rankings (although the downloads are included on his individual author page)).  Here is the new list (through July 1, 2019) 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
Reuven Avi-Yonah (Michigan)  184,418 Reuven Avi-Yonah (Michigan) 16,885
Dan Shaviro (NYU) 118,651 Daniel Hemel (Chicago) 14,545
David Gamage (Indiana-Bl.) 114,176 Darien Shanske (UC-Davis)  12,097
Daniel Hemel (Chicago) 112,722 David Gamage (Indiana-Bl.) 11,916
Lily Batchelder (NYU) 111,787 Dan Shaviro (NYU) 11,805
Darien Shanske (UC-Davis) 108,323 Manoj Viswanathan (UC-Hastings) 11,224
Cliff Fleming (BYU) 103,496 David Kamin (NYU) 10,780
8 David Kamin (NYU) 100,391 Ari Glogower (Ohio State) 10,703
9 Manoj Viswanathan (UC-Hastings) 100,353 Lily Batchelder (NYU) 10,468
10  Rebecca Kysar (Fordham) 99,493 Cliff Fleming (BYU) 10,229
11  Ari Glogower (Ohio State) 98,273 Rebecca Kysar (Fordham)  10,117
12  Michael Simkovic (USC) 43,116 Richard Ainsworth (BU) 2,813
13  D. Dharmapala (Chicago) 37,023 Michael Simkovic (USC) 2,788
14  Paul Caron (Pepperdine) 35,564 Brad Borden (Brooklyn) 2,558
15  Louis Kaplow (Harvard) 31,720 Kyle Rozema (Chicago) 2,493
16  Richard Ainsworth (BU) 27,750 Bridget Crawford (Pace) 2,430
17  Ed Kleinbard (USC) 25,914 D. Dharmapala (Chicago) 2,350
18  Vic Fleischer (UC-Irvine) 25,506 Ruth Mason (Virginia) 2,252
19  Jim Hines (Michigan) 24,491 Jacob Goldin (Stanford) 2,198
20  Gladriel Shobe (BYU) 23,991 Robert Sitkoff (Harvard) 1,903
21  Ted Seto (Loyola-L.A.) 23,498 Joe Bankman (Stanford) 1,864
22  Richard Kaplan (Illinois) 23,438 Hugh Ault (Boston College) 1,856
23  Brad Borden (Brooklyn) 22,781 Louis Kaplow (Harvard) 1,777
24  Robert Sitkoff (Harvard) 22,461 George Yin (Virginia) 1,676
25  Katie Pratt (Loyola-L.A.) 22,205 Yariv Brauner (Florida) 1,608

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July 24, 2019 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Rankings, Tax Scholarship | Permalink | Comments (0)

The Tax Treatment Of Cryptocurrency Hard Forks

Danhui Xu (J.D. 2020, Fordham), Free Money, But Not Tax-Free: A Proposal for the Tax Treatment of Cryptocurrency Hard Forks, 87 Fordham L. Rev. 2693 (2019):

Cryptocurrency has attracted extraordinary attention as one of the greatest financial innovations in recent years. Equally noticeable are the increasingly frequent cryptocurrency events, such as hard forks. Put simply, a cryptocurrency hard fork happens when a single cryptocurrency splits in two, which results in original coin owners receiving free forked coins. Such hard forks have resulted in billions of dollars distributed to U.S. taxpayers. Despite ongoing regulatory efforts, to date, the Internal Revenue Service (IRS) has yet to take a clear position on the tax treatment of cryptocurrency hard forks. The lack of useful guidance when filing tax returns has left taxpayers genuinely confused in the past few years.

To fill this regulatory gap, this Note proposes a framework for cryptocurrency hard fork taxation.

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

Tuesday, July 23, 2019

Kysar: Unravelling The Tax Treaty

Rebecca Kysar (Fordham), Unravelling the Tax Treaty, 103 Minn. L. Rev. ___ (2019):

Coordination among nations over the taxation of international transactions rests on a network of some 2,000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances, taxpayer abuse, and shifting political tides. In the academic literature, however, scrutiny of tax treaties is largely confined to the albeit important question of whether tax treaties are beneficial for developing countries. Surprisingly little consideration has been paid to whether developed countries, like the United States, should continue to sign tax treaties with one another, and no formal revenue or economic analyses of the treaties has been undertaken by the United States government. In fact, little evidence or theory exists to support entrance into tax treaties by the United States, and examination of investment flows indicates the treaties may even lose U.S. revenues. Problematically, the treaties also thwart reforms of the antiquated and broken international tax system. The trajectory of the recent U.S. tax legislation illustrates this phenomenon.

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

The Hitchhiker’s Guide To Law School Learning Outcomes

Debra Moss Vollweiler (Nova), Don’t Panic! The Hitchhiker’s Guide to Learning Outcomes: Eight Ways to Make Them More Than (Mostly) Harmless, 44 U. Dayton L. Rev. 17 (2018):

HitchhikersLegal education, professors and administrators at law schools nationwide have finally been thrust fully into the world of educational and curriculum planning. Ever since ABA Standards started requiring law schools to “establish and publish learning outcomes” designed to achieve their objectives, and requiring how to assess them debuted, legal education has turned itself upside down in efforts to comply. However, in the initial stages of these requirements, many law schools viewed these requirements as “boxes to check” to meet the standard, rather than wholeheartedly embracing these reliable educational tools that have been around for decades. However, given that most faculty teaching in law schools have Juris Doctorate and not education degrees, the task of bringing thousands of law professors up to speed on the design, use and measurement of learning outcomes to improve education is a daunting one.

Unfortunately, as the motivation to adopt them for many schools was merely meeting the standards, many law schools have opted for technical compliance — naming a committee to manage learning outcomes and assessment planning to ensure the school gets through their accreditation process, rather than for the purpose of truly enhancing the educational experience for students. For those law schools reluctantly trailing along on the learning outcome and assessment train, the best advice to schools thrown into this world comes from The Hitchhiker’s Guide to the Galaxy comedy science fiction series, in which the electronic guide of the same name tells those along for the ride “Don’t Panic!” (in large friendly letters) while describing our home planet as a whole, at least for part of the series, as “mostly harmless.” While schools should not be panicking at implementing and measuring learning outcomes, neither should they consign the tool to being a “mostly harmless” — one that misses out on the opportunity to improve their program of legal education through proper leveraging. Understanding that outcomes design and appropriate assessment design is itself a scholarly, intellectual function that requires judgment, knowledge and skill by faculty can dictate a path of adoption that is thoughtful and productive.

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July 23, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (0)

Monday, July 22, 2019

Shobe Presents The Substance Over Form Doctrine And The Up-C At The IRS

Gladriel Shobe (BYU) presented The Substance Over Form Doctrine and the Up-C, 38 Va. Tax Rev. 249 (2018), to the Passthrough and Special Industries Group in the IRS Chief Counsel's Office on Friday in Washington, D.C.:

Shobe (2018)The Up-C is an increasingly popular form of IPO that generates significant tax benefits as compared to a traditional IPO. These tax benefits, which are the driving force behind the Up-C, have generally gone uncontested and are achieved by taking a form over substance approach to the Up-C for tax purposes. Governmental officials had never directly addressed the Up-C until recently when the SEC issued an interpretive letter (the Up-C Letter) condoning a substance over form approach to the Up-C for purposes of SEC Rule 144. As a result of the Up-C Letter, owners in an Up-C get the best of both worlds by inconsistently taking a form over substance approach for tax purposes and a substance over form approach for securities law purposes.

This Article analyzes whether this disparate treatment of the Up-C is justified from either a technical or policy perspective.

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July 22, 2019 in Colloquia, IRS News, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Lesson From The Tax Court: The Role Of Abuse In Spousal Relief Claims

Tax Court (2017)Divorce brings all kinds of consequences.  Today’s lesson is about one of the tax consequences.  In last week's case of Brigette Ogden v. Commissioner, T.C. Memo. 2019-88  (July 15, 2019) (Judge Halpern), the divorced taxpayer sought to be relieved of her obligation to pay tax reported on two prior joint returns.  She sought relief based in part on a claim of spousal abuse and a claim that a state court’s divorce decree absolved her of responsibility.  Judge Halpern’s opinion teaches lessons about: (1) the relationship of spousal abuse to spousal relief in §6015, (2) the relationship of state courts to federal tax law, and (3) the relationship of sub-regulatory IRS guidance---here a Revenue Procedure---to Tax Court review of an IRS decision about spousal relief.  Details below the fold.  It's all about relationships.

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July 22, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (2)

Sunday, July 21, 2019

How The 2017 Tax Cuts And Jobs Act Favors The For‐Profit Hospital Model

Elizabeth King (Davis Polk & Wardwell, New York), Tax Reform, Mixed‐Entity Markets, and Hospitals: How the 2017 Tax Cuts and Jobs Act Favors the For‐Profit Hospital Model, 37 Yale L. & Pol'y Rev. 527 (2019):

When the U.S. Congress passed the Tax Cuts and Jobs Act in 2017 (the “TCJA”), it achieved a significant tax cut for corporations. In doing so, however, Congress simultaneously reshaped the landscape for mixed‐ entity markets—that is, industries like healthcare and education in which nonprofit, for‐profit, and government entities coexist and compete. This is particularly true for the hospital market in which the TCJA’s provisions have subtly but decidedly tilted market conditions towards a for‐profit hospital model.

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

The Top Five New Tax Papers

SSRN Logo (2018)There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #4 and #5:

  1. [487 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  2. [229 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  3. [190 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  4. [128 Downloads]  Fixing the Five Flaws of the Tax Cuts and Jobs Act, by Kimberly Clausing (Reed College)
  5. [106 Downloads]  Back to Basics: Rethinking Normative Principles in International Tax, by Shay Shimon Moyal (S.J.D. 2020, Michigan)

July 21, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Saturday, July 20, 2019

Is Tax Planning Best Done In Private?

Jeffrey L. Hoopes (North Carolina), Patrick Langetieg (Taxpayer Behavior Lab, IRS), Edward L. Maydew (North Carolina) & Michele Mullaney (North Carolina), Is Tax Planning Best Done In Private?:

We investigate whether privately-held firms engage in more tax planning than do publicly-held firms. Private firms are commonly believed to face lower non-tax costs of tax planning relative to public firms, allowing them to engage in more tax planning. However, empirical evidence of U.S. private firm tax planning is limited, primarily because of difficulty in obtaining private firm data. We make use of detailed administrative data from the Internal Revenue Service, which cover virtually all U.S. public and private firms and allow us to examine a variety of specific tax planning measures. Contrary to conventional wisdom, we find no evidence that private corporations engage in more tax planning relative to similar-sized public corporations in the same industry. Moreover, some evidence suggests that private firms actually engage in less tax planning.

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

A New Growth Vision For Legal Education, Part II: The Groundwork: Building A Customer Satisfying Innovation Ecosystem

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

Hilary G. Escajeda (Denver), Legal Education: A New Growth Vision Part II – The Groundwork: Building a Customer Satisfying Innovation Ecosystem, 97 Neb. L. Rev. 935 (2019):

Financial sustainability awaits agile, future-focused legal education programs that deliver law students with market-valued, cost-effective, and omni-channel knowledge and skills development solutions.

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July 20, 2019 in Legal Ed Scholarship, Legal Education, Scholarship | Permalink | Comments (1)