Paul L. Caron
Dean


Thursday, April 16, 2020

Shareholder Wealth Effects Of Border Adjustment Taxation

Fabio Gaertner (Wisconsin), Jeffrey Hoopes (North Carolina) & Edward Maydew (North Carolina), Shareholder Wealth Effects of Border Adjustment Taxation, 62 J.L. & Econ. 215 (2019) (reviewed by Daniel Hemel (Chicago) here):

Following two decades of discussion, the border adjustment tax briefly emerged as part of proposed U.S. corporate tax reform in early 2017. While heavily debated, little empirical evidence exists regarding the border adjustment tax. We take advantage of the period during which the border adjustment tax was under strong consideration to examine its effects on shareholder value. We find that high-importing firms (measured using industry, aggregate government industry data, and firm-level shipping container data) suffer negative returns on days the tax had a greater likelihood of adoption.

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April 16, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, April 15, 2020

Viswanathan Presents Retheorizing Progressive Taxation Online Today At UC-Irvine

Manoj Viswanathan (UC-Hastings) presents Retheorizing Progressive Taxation online at UC-Irvine today as part of its Tax Policy Colloquium Series hosted by Joshua BlankVictor Fleischer, and Omri Marian:

Viswanathan (2017)Tax progressivity is undeniably central to both the detailed analytics of tax policy and the rhetorical arguments commonly used in public discourse. Yet there are surprisingly inconsistent and inaccurate uses of this seemingly objective term. By theorizing progressivity’s constitutive elements and identifying its shortcomings, this Article offers a novel taxonomy of how progressivity is assessed and why contradictory assessments are common.

This Article argues that, as a theoretical matter, accurately characterizing tax provisions as progressive (or regressive) requires assessing their burdens beyond simply the tax payments remitted. By failing to account for effects such as economic incidence and inefficiency costs, traditional progressivity analyses are incomplete. Relatedly, since the spending side of the budget process is functionally indistinguishable from taxation, accurate progressivity analyses must also consider where tax revenues are spent.

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April 15, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

McCarden: Offshore Tax Enforcement And Divorce

Khrista McCarden (Tulane), Offshore Tax Enforcement and Divorce, 80 Ohio St. L.J. 521 (2019):

High-net-worth taxpayers continue to hide assets offshore, and offshore tax enforcement remains an immense problem for the United States. In 2016, the Panama Papers revealed another previously unnoticed reason that high-net-worth tax cheats place assets offshore: to hide them from their spouses during divorce proceedings. Typically, these offshore tax evaders also will refuse to disclose their offshore accounts during divorce proceedings even though required to do so. The individuals hiding offshore assets in this manner are predominantly males. Ultimately, their wives are forced to hire forensic accountants to trace an extensive maze of offshore ownership during the divorce.

This Article proposes a novel solution to the problem of offshore tax enforcement by using high-net-worth divorces. Currently, an offshore tax evader may frustrate his wife’s attempts to discover family assets held offshore during divorce proceedings and still remain eligible for tax amnesty programs. Moreover, he can later claim that he did not “willfully” hide assets from tax authorities and thereby escape criminal prosecution. This Article solves these two problems in a manner that will strengthen offshore tax enforcement while truncating prolonged divorce proceedings.

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April 15, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Tuesday, April 14, 2020

Bearer-Friend Presents In-Kind Taxpaying: Lessons And Risks Online Today At Georgetown

Jeremy Bearer-Friend (George Washington) presents In-Kind Taxpaying: Lessons and Risks online at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Brian Galle:

BearerFriend (2020)This Article examines non-cash remittance of tax obligations (ie; paying taxes "in-kind"). It begins by defining in-kind taxpaying, describing the early roots of in-kind taxpaying, and documenting the broad variety of inkind taxpaying in the US. It then discusses the lessons and risks of in-kind taxpaying. In doing so, this Article makes three contributions. First, it improves our definition of taxpaying by identifying the wide variety of inkind remittances that already occur in our current tax system, offering a taxonomy for how to understand in-kind remittances within a modern economy that relies primarily on cash taxes. Second, it refutes the presumption that in-kind remittance of tax obligations is not viable, thus expanding the tax tools available to local, state, and federal governments and demonstrating how narrow presumptions about tax remittance have predetermined core tax policy choices. Third, it confronts the substantial dangers of in-kind taxpaying, using these risks to propose new principles for limiting the design and administration of in-kind taxpaying.

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April 14, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Leff: What is Lost When Philanthropy Avoids Philanthropy Law

Benjamin Leff (American), What is Lost When Philanthropy Avoids Philanthropy Law, 70 Fla. L. Rev. F. 155 (2019) (reviewing Dana Brakman Reiser (Brooklyn), Disruptive Philanthropy: Chan-Zuckerberg, the Limited Liability Company, and the Millionaire Next Door, 70 Fla. L. Rev. 921 (2018)):

Chan 3Professor Dana Brakman Reiser's Disruptive Philanthropy: Chan-Zuckerberg, the Limited Liability Company, and the Millionaire Next Door provides "the definitive explanation" for the "seemingly bizarre choice" by some philanthropists to pursue their charitable goals using a for-profit vehicle (like an LLC) rather than a traditional charitable entity (like a private foundation). This review essay explains that as long as there is a federal estate tax, that decision is likely to represent only a one-generation delay in the use of traditional charitable entities for those philanthropists whose estates are subject to the federal estate tax.

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April 14, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Monday, April 13, 2020

Lawsky Presents Teaching Algorithms And Algorithms For Teaching Online At Florida

Sarah Lawsky (Northwestern) presented Teaching Algorithms and Algorithms for Teaching online at Florida as part of its Tax Colloquium Series sponsored by the Marshall M. Criser Distinguished Lecture Series:

Lawsky (2017)This article focuses on what it calls the “algorithm method,” a common method used to teach tax classes that presents students with unambiguous problems that guide students through complex statutes and regulations. The article describes and situates within current pedagogies a novel teaching tool: a website that randomly generates tax problems with objectively correct answers; multiple choice answers that reflect common errors that students make; and explanations for each answer that either respond to the underlying error or give a full explanation of the correct answer. The article explains the purpose and use of the website, highlights advantages of and potential issues with the website, and proposes approaches to make using the website, and indeed the algorithm method, more effective.

April 13, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops, Teaching | Permalink | Comments (0)

Lesson From The Tax Court: Penalty Approval Form Invalid When Penalty Not Properly Identified

Tax Court (2017)To the uninitiated, §6662 seems to impose a single accuracy-related penalty that varies in amount depending on just how badly the taxpayer screwed up.  For example, here’s the Wikipedia description: “This penalty of 20% or 40% of the increase in tax is due in the case of substantial understatement of tax, substantial valuation misstatements, transfer pricing adjustments, or negligence or disregard of rules or regulations.”  Note the singular “this penalty.” 

Today’s post will initiate you.  In Roderick M. Campbell and C. Sandra Campbell v. Commissioner, T.C. Memo. 2020-41 (April 7, 2020) (Judge Ashford) an IRS Supervisor’s approval of a accuracy-related penalty was insufficient to comply with §6751 because the approval form did not specify whether the approval was for the 20% or 40% penalty amount.  Despite the technical win here, however, this may not be a strong case for taxpayers.  Details below the fold.

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April 13, 2020 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Sunday, April 12, 2020

The Top Five New Tax Papers

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

  1. SSRN Logo (2018)[907 Downloads]  Regulating In A Pandemic: Evaluating Economic And Financial Policy Responses To The Coronavirus Crisis, by Hiba Hafiz, Shu-Yi Oei, Diane Ring & Natalya Shnitser (all of Boston College)
  2. [158 Downloads]  Important Developments in Federal Income Taxation, by Edward Morse (Creighton)
  3. [122 Downloads]  What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, by Lloyd Mayer (Notre Dame) & Zachary Pohlman (J.D. 2021, Notre Dame)
  4. [121 Downloads]  Why Study Tax History?, by Reuven Avi-Yonah (Michigan)
  5. [193 Downloads]  Wealth Transfer Tax Planning After The Tax Cuts and Jobs Act, by John Miller (Idaho) & Jeffrey Maine (Maine)

April 12, 2020 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Friday, April 10, 2020

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Hayashi's Countercyclical Property Taxes

This week, Sloan Speck (Colorado) reviews a new work by Andrew T. Hayashi (Virginia), Countercyclical Property Taxes, Va. L. & Econ. Res. Paper No. 2020-04.

Speck (2017)

In Countercyclical Property Taxes, Andrew Hayashi argues that residential real property taxes have important—and counterintuitive—macroeconomic implications during recessions and subsequent recoveries. Although policymakers often tout property taxes as stable revenue sources when the economy stalls, Hayashi lucidly outlines how these tax instruments amplify both household risk and community risk by pressuring homeowners’ discretionary spending. As Hayashi highlights, the design features of property taxes that generate revenue stability are the very same elements that shift risk from government units to households and communities. For this reason, Hayashi suggests taking a fresh and more nuanced look at property tax relief during downturns, with an eye towards fairness and equity in addition to revenue.

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April 10, 2020 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

23rd Annual Critical Tax Theory Conference At Florida

Florida hosts the 23rd annual (and first virtual)  Critical Tax Theory Conference today and tomorrow:

Florida Logo (2017)The Critical Tax Theory Conference has a long history of fostering the work of both established and emerging scholars whose research challenges and enriches the tax law and policy literature. Critical tax scholars question assumptions of objectivity in tax, as their work explores how tax law and policy impact historically marginalized groups. At a time when tax policy is once again at the forefront of politics and public discourse, the work of these and other critical tax scholars supports a more robust discussion of the role for tax law in current and future social and economic policy.

Friday

  • Yariv Brauner (Florida), Tax Treaty Negotiation
  • Kim Brooks (Dalhousie), A Hitchhiker’s Guide to Comparative Tax Scholarship
  • David Elkins (Netanya), The Right and the Good: The Rhetoric of International Taxation
  • Jonathan Choi (NYU), An Empirical Study of Statutory Interpretation in Tax Law, 95 N.Y.U. L. Rev. ___ (2020)
  • Tessa Davis (South Carolina), Taxing the Cyborg
  • Victoria Haneman (Creighton), Green Burial, Funeral Poverty, and Tax Incentives
  • Darryll Jones (Florida A&M), Subsidizing Hate? Does the Constitution Require Tax Exempt Status for the Alt-Right?
  • Henry Ordower (St. Louis), Capital, an Elusive Tax Object and Impediment to Sustainable Taxation
  • Orli Oren-Kolbinger (Villanova), The Error Cost of Marriage
  • Leandra Lederman (Indiana), The Fraud Triangle and Tax Evasion
  • Fernando Loayza (LL.M. 2020, Yale), A Peruvian Tax Lawyer in a US Corporate Tax Class: What Can Be Explained and What Cannot Be Explained
  • Kerry Ryan (St. Louis), Employment Taxation of Prison Labor
  • Morenike Saula (George Washington), Why Nigeria Needs a FATCA
  • Dan Shaviro (NYU), What Are Minimum Taxes, and Why Might One Favor or Disfavor Them?
  • Phyllis Taite (Florida A&M), Making Tax Policy Great Again: America, You’ve Been Trumped
  • Cristina Trenta (Örebro), Tax Measures in Support of the Circular Economy and Sustainable Development: The Experience of the Nordic Countries

Saturday

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April 10, 2020 in Conferences, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Summary Of The Tax Provisions Of The CARES Act

David S. Miller, Muhyung (Aaron) Lee, Kathleen Semanski & Sean Webb (Proskauer, New York), Summary of the Tax Provisions of the CARES Act:

This paper summarizes the tax provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

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April 10, 2020 in Coronavirus, Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Borden: COVID-19 And Section 1031: Anticipating IRS Extension Relief For Like-Kind Exchanges

Bradley T. Borden (Brooklyn), COVID-19 and Section 1031: Anticipating IRS Extension Relief:

Anyone who is in a section 1031 exchange, could have trouble finishing such exchange due to the current situation caused by COVID-19. The IRS appears to have authority to extend the section 1031 45-day and 180-day time periods, but they haven’t done so yet. This short piece considers what exchangers might do while they wait for hoped-for extensions from the IRS.

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April 10, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Thursday, April 9, 2020

Shaviro Presents Minimum Taxes Online Today At Indiana

Daniel Shaviro (NYU) presents What Are Minimum Taxes, and Why Might One Favor or Disfavor Them? online at Indiana today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

Shaviro (2018)The alternative minimum tax (AMT), a key and at the time widely lauded feature of the Tax Reform Act of 1986, soon fell into disrepute and was subsequently scaled back, to general approbation and relief. Yet in recent years minimum taxes have come back into vogue. For example, two key international tax provisions in the 2017 tax act (GILTI and the BEAT) had minimum tax structures, and the OECD has recently issued proposed guidelines for the design of a global minimum tax, meant for multilateral adoption.

In light of minimum taxes’ surprising return to center stage, this paper explores such issues as the following:

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April 9, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, April 8, 2020

Oh Presents Wealth Tax Design: Lessons From Estate Tax Avoidance Online Today At UC-Irvine

Jason Oh (UCLA) presents Wealth Tax Design: Lessons from Estate Tax Avoidance (with Eric Zolt (UCLA)) online at UC-Irvine today as part of its Tax Policy Colloquium Series hosted by Joshua BlankVictor Fleischer, and Omri Marian:

OhPresidential candidates Elizabeth Warren and Bernie Sanders have both proposed ambitious new annual wealth taxes based on academic work by Emmanuel Saez and Gabriel Zucman. They project these proposals to raise trillions of dollars over the next ten years. Some critics challenge the Saez-Zucman approach to measuring wealth concentration. Other critics including Larry Summers and Natasha Sarin have used data from estate tax returns and the relatively small amount of revenue the estate tax raises to question the revenue projections of these proposals. This comparison can be useful only if one thinks carefully about specific estate tax strategies and how these strategies translate to an annual wealth tax. This article engages in that exercise. When one takes a closer look at estate tax avoidance and how it maps onto an annual wealth tax, a much more complex narrative emerges.

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April 8, 2020 in Colloquia, Scholarship, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Taxing The Poor Through Real Estate Transfers

David A. Simon (Kansas), Taxing the Poor Through Real Estate Transfers, 2020 U. Ill.  Rev. Online 29 (2020):

This Article collects data on real estate transfer taxes in Illinois. It shows that municipal transfer taxes are more likely to affect poor communities than affluent communities.

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April 8, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Tuesday, April 7, 2020

Reck Presents Tax Evasion By The Wealthy: Measurement And Implications Online Today At Georgetown

Daniel Reck (London School of Economics) presents Tax Evasion by the Wealthy: Measurement and Implications (with John Guyton (IRS), Patrick Langetieg (IRS), Max Risch (Michigan) & Gabriel Zucman (UC-Berkeley)) online at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Brian Galle:

ReckThis paper combines random audit data with new data on offshore bank accounts to estimate the size and distribution of individual income tax evasion in the United States. Evasion through offshore financial institutions is highly concentrated at the very top of the income distribution. Random audits virtually never detect this form of evasion. Data from random audits alone suggests an increasing rate of tax evasion through the income distribution up to the 99th percentile, but a sharp drop-off in the rate of evasion with income within the top 1 percent. Accounting for evasion through offshore financial institutions partly reverses this drop-off in the rate of evasion at the top, leading us to revise upwards random-audit estimates of the tax gap for very-high-income earners by 4 to 6 percentage points.

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April 7, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (1)

Monday, April 6, 2020

Universal Basic Income And The Value Of Work Beyond Incentives

Jonathan Grossberg (Robert Morris), Something for Nothing: Universal Basic Income and the Value of Work Beyond Incentives, 26 Wash. & Lee J. Civ. Rts. & Soc. Just. 1 (2019):

Proponents and opponents of a universal basic income all acknowledge that the most significant political challenge to its adoption in the United States is that a universal basic income would not have a work requirement attached. Often, this is characterized as a problem involving incentives—the availability of a universal basic income would cause many people to stop working (or significantly curtail the number of hours that they work) and simply live off the universal basic income. This Article makes three contributions to the literature related to a universal basic income: first, it provides a typology for understanding the many reasons for valuing work; second, it argues that the United States is unlikely to implement a universal basic income because a universal basic income does not account for several aspects of the value of work; and, third, it argues that advocates of a universal basic income should instead focus on the more modest goal of redefining the activities that constitute work and broadening the social safety net by expanding existing policies through the use of a broader definition of work.

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April 6, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Lesson From The Tax Court: The Long And Short Of CDP

Tax Court (2017)I call it Collection Delay Process for a reason.  Two recent cases are bookend lessons on the speed of CDP.  These two cases suggest that the fastest CDP resolution one can reasonably expect is 2 years, but one can push that to 7-8 years depending on the complexity of the case and persistence of the taxpayer. 

First, Do S. Wong v. Commissioner, T.C. Memo 2020-32 (March 5, 2020) (Judge Lauber) is one of the shorter CDP timelines I’ve seen, with a correspondingly short opinion of 12 pages.  There, the taxpayer was able to stop active collection for about 2 years.

Second, Ronald M. Goldberg v. Commissioner, T.C. Memo 2020-38 (April 2, 2020) (Judge Morrison) is one of the longer CDP timelines I’ve seen, with a correspondingly long opinion of 163 pages.  There, the taxpayer was able to stop active collection for 7.5 years.

What each of these taxpayers gained in delay, however, is somewhat offset by the simultaneous extension of the collection limitations period.  As a result Mr. Wong's 2013 liability and Mr. Goldberg's much older 2004 liability are both now likely collectible through 2029.  The IRS may continue with enforced collection for both but one taxpayer will owe more in penalties and interest because of the longer delay.  Next week we will consider a lesson that Goldberg teaches on interest (unless a more interesting lesson comes up).  Today, however, I just present these cases to illustrate what practitioners might expect in the CDP process.

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April 6, 2020 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Saturday, April 4, 2020

Lipman: State Tax Takeaways And Child Tax Credits

Francine J. Lipman (UNLV), State Tax Takeaways, in Holes in the Safety Net: Federalism and Poverty (Ezra Rosser (American) ed. Cambridge University Press 2020):

HolesWhile the aggregate tax system is mildly progressive, state and local tax systems are notably regressive. The lowest 95 percent of all income earners pay on average a higher percent of their income in state and local taxes than their share of aggregate income. By comparison, the top 5 percent of all income earners pay a lower percent of their income in state and local taxes than their aggregate share of household income. As a result, the lowest quartile of income earners pays a higher effective tax rate than the highest 1 percent of all income earners. The ratio of effective state and local tax rates for lowest income to highest income taxpayers is as high as 7 times in Wyoming, Washington and Florida. None of these states has an income tax so they rely heavily on regressive consumption tax revenues. For state and local governments this is a no-win race to the bottom because as income becomes increasingly concentrated among the wealthy, consumption and state and local tax revenues decrease.

This chapter reviews the basic components of state and local tax systems focusing on their many regressive attributes and make suggestions on how states might improve them. American has fifty state tax laboratories plus the District of Columbia that offer a myriad of dynamic time-tested tax structures. Nearly every state currently taxes lower-income families at a higher effective tax rate than higher income families. On average, the lowest income families are paying state and local taxes at an effective rate that is twice as high as the rate that the top 1 percent of income households enjoy. “Identifying state tax trends serves a dual purpose: first, as a leading indicator providing a sense of what we can expect in the coming months and years, and second, as a set of case studies, placing ideas into greater circulation and allowing empirical consideration of what has and has not worked.” As state and local governments continue to confront tax reform in these resource challenging times this chapter serves as a guide for front line progressive tax innovations, justice, and equity for all.

Francine J. Lipman (UNLV) & James E. Williamson (San Diego State), Child Tax Credit Redux, 165 Tax Notes 1303 (Nov. 25, 2019):

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April 4, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Friday, April 3, 2020

Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Mason's What The CJEU’s Hungarian Cases Mean For Digital Taxes

This week, Hayes Holderness (Richmond) reviews Ruth Mason (Virginia), What the CJEU’s Hungarian Cases Mean for Digital Taxes:

Holderness (2017)Long before the current crisis ramped up fiscal pressure on nations and states, governments have sought to tax the foreigner rather than those at home. Coordination between nations and states has sought to limit the ability of governments to engage in such protectionist or discriminatory taxation; the European Union’s protection of fundamental freedoms and the United States’ Commerce Clause (at least in its dormant capacity) serve as examples. As governments begin considering and adopting digital taxes, such as France’s Digital Services Tax, these coordinated efforts may prevent those governments from utilizing those taxes in protectionist ways by discriminating against out-of-state taxpayers. Indeed, France’s Digital Services Tax has been challenged for exactly that reason because the tax appears to target United States companies while failing to capture most French companies.

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April 3, 2020 in Hayes Holderness, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

Avi-Yonah Presents Tax Expenditures Online Today At British Columbia

Reuven S. Avi-Yonah (Michigan) and Nir Fishbien (S.J.D. 2020, Michigan) present Tax Expenditures and Horizontal Equity: A Lost Lesson from Stanley Surrey online at University of British Columbia Peter A. Allard School of Law as part of its Tax Law and Policy Workshop Speaker Series (poster) hosted by Wei Cui:

Avi-Yonah 2Tax expenditures are “revenue losses attributable to provisions of the Federal tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability.’’ The concept of tax expenditures was coined by the first Assistant Secretary for Tax Policy, Stanley S. Surrey, in the late 1960s. The concept relies on the Haig-Simons definition of income (with certain adjustments) as the baseline, a deviation from which is considered a tax expenditure.

There are two basic problems with attempts to define tax expenditures against a Haig-Simons baseline. First, it is not clear why the Haig-Simons, and not other definitions of income, should be used as a baseline. Second, it is not clear why such deviations are normatively problematic. That, presumably, is why the literature now accepts the view we should just learn to live with the tax expenditures. Surrey would have disagreed, and this article represents an attempt to recapture his original view of tax expenditures and assess its present-day implications.

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April 3, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Thursday, April 2, 2020

Osofsky Presents Automated Legal Guidance Online Today At Duke

Leigh Osofsky (North Carolina) presents Automated Legal Guidance, 106 Cornell L. Rev. __ (2020) (with Joshua Blank (UC-Irvine)) online at Duke today as part of its Tax Policy Workshop Series hosted by Richard Schmalbeck and Lawrence Zelenak:

Osofsky (2019)Through online tools, virtual assistants and other technology, governments increasingly rely on artificial intelligence to help the public understand and apply the law. The Internal Revenue Service, for example, encourages taxpayers to seek answers regarding various tax credits and deductions through its online “Interactive Tax Assistant.” The U.S. Army directs individuals with questions about enlistment to its virtual guide, “Sgt. Star.” And the U.S. Citizenship and Immigration Services suggests that potential green card holders and citizens speak with its interactive chatbot, “Emma.” Through such automated legal guidance, the government seeks to provide advice to the public at a fraction of the cost of employing human beings to perform these same tasks.

This Article offers one of the first critiques of these new systems of artificial intelligence. It shows that automated legal guidance currently relies upon the concept of “simplexity,” whereby complex law is presented as though it is simple, without actually engaging in simplification of the underlying law. While this approach offers potential gains in terms of efficiency and ease of use, it also causes the government to present the law as simpler than it is, leading to less precise advice, and potentially inaccurate legal positions. 

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April 2, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Avi-Yonah: Using The Corporate Tax Rather Than Antitrust To Curb The Power Of Big Tech

Reuven S. Avi-Yonah (Michigan), Antitrust and the Corporate Tax: A Missed Opportunity?:

Big Tech have clearly become for early 21st century America what Standard Oil, U.S. Steel, and the railroads were to early 20th century America: The embodiment of corporate power that enjoys a near monopoly on an important segment of economic activity. In response, Sen. Elizabeth Warren (D-MA) has proposed to treat the Big Tech as common carriers (forbidding them from selling their own goods and services on their platforms) and force them to dispose of their recent anti-competitive acquisitions. There may, however, be another way of reining in the power of the Big Techs that is less drastic than breaking them up, and may be a helpful complement to antitrust enforcement. This way derives from the other early 20th century innovation that was intended in 1909 to curb the power of the monopolies: The corporate tax.

The corporate tax can limit corporate power in three ways. First, even a low rate corporate tax requires corporations to provide the government with detailed information about their activities that is hard to obtain without a corporate tax (e.g., it forces them to calculate profits per taxing jurisdiction, which they may not otherwise do). Second, potentially the corporate tax, like any tax, involves the power to destroy if the rate is high enough. The knowledge that this could happen may limit the aggressiveness of corporate management (i.e., in the case of the Big Techs, their founders). Third and most important, the corporate tax can be used as a regulatory device, with the effective rate being raised or lowered either for specific desirable or undesirable activities (e.g., maintaining or compromising privacy) or in response to an overall corporate social responsibility score.

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April 2, 2020 in Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Wealth Taxes And Capital Markets

John D. Stowe (Ohio University), Wealth Taxes and Capital Markets:

Wealth taxes have been adopted or considered as an adjunct to existing tax systems such as income taxes, property taxes, and consumption taxes. Discussions about a wealth tax are usually a mixture of political, social, and economic issues, with many of the published papers designed to serve an author’s agenda. The purpose of this note is to leave many of these issues behind and to focus on the effects of a wealth tax on capital markets.

Highlights

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April 2, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, April 1, 2020

Miller & Maine: Wealth Transfer Tax Planning After The Tax Cuts and Jobs Act

John A. Miller (Idaho) & Jeffrey A. Maine (Maine), Wealth Transfer Tax Planning after the Tax Cuts and Jobs Act, 2020 BYU L. Rev. ___:

On December 17, 2017, Congress passed the Tax Cuts and Jobs Act (TCJA). Among its many impacts, the TCJA increased the inflation adjusted estate tax basic exclusion amount to $10,000,000 on a temporary basis. This has dramatic implications for many existing and future estate plans, including a major crossover impact on income tax planning. In this article we explain the operation of the federal wealth transfer taxes (the estate tax, the gift tax and the generation skipping transfer tax) in the wake of the TCJA and of the newly issued regulations interpreting the TCJA changes. We also explain the basic tax planning techniques for wealth transmission. The overall design of this article is to bring the reader into the current wealth transfer tax planning picture while providing references to more detailed treatments of particular topics within this broad field.

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April 1, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Monday, March 30, 2020

Polsky Presents Explaining Choice-Of-Entity Decisions By Silicon Valley Start-Ups Online Today At BYU

Gregg Polsky (Georgia) presents Explaining Choice-of-Entity Decisions by Silicon Valley Start-Ups online at BYU today as part of its Tax Policy Colloquium Series hosted by Cliff Fleming and Gladriel Shobe:

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

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

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March 30, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Lesson From The Tax Court: One Plus One Equals One

Tax Court (2017)Author’s Note: Like so many others I am now working from home and climbing various learning curves, some steeper than others.  So please accept my apologies if today’s post contains more errors than normal.  Hopefully they will just be errors of the fingers and not of the brain.  

The case of Sean McNamee v. Commissioner, T.C. Memo. 2020-37 (Mar. 18, 2020) (Judge Lauber) teaches us that taxpayers have only one opportunity to challenge a tax liability in a Collection Due Process (CDP) hearing, even though the Tax Code provides for up to two CDP hearings for any given tax liability.  In today's case the IRS erroneously refused to let Mr. McNamee challenge a tax liability in his first CDP hearing.  He did not obtain Tax Court review of that decision.  Instead, he re-challenged the liability in a second, later, CDP hearing involving the same underlying liability.  Mistake.  The Court held that even though the IRS screwed up the first time, the taxpayer’s failure to obtain judicial review of the first hearing precluded him from challenging the underlying liability in the second.  The lesson here centers on a tricky quirk in the CDP rules.  Details below the fold.   

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March 30, 2020 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

Friday, March 27, 2020

Auerbach Presents U.S. Inequality And Fiscal Progressivity: An Intragenerational Accounting Online Today At British Columbia

Alan Auerbach (UC-Berkeley) presents U.S. Inequality And Fiscal Progressivity: An Intragenerational Accounting (with Laurence J. Kotlikoff (Boston University) & Darryl Koehler (Economic Security Planning)) online at University of British Columbia Peter A. Allard School of Law as part of its Tax Law and Policy Workshop Speaker Series hosted by Wei Cui:

Auerbach (2020)This study measures inequality and fiscal progressivity. It differs from prior such analyses by measuring inequality based on remaining lifetime spending rather than particular resources, like wealth and current income, that only partially determine lifetime spending, and by considering inequality and progressivity within generations.

To estimate the distribution of remaining lifetime spending, we run the 2016 Federal Reserve Survey of Consumer Finances (after imputing missing data from other surveys) through The Fiscal Analyzer (TFA), a life-cycle consumption-smoothing program that incorporates remaining life-time resources, borrowing constraints and all major federal and state tax and transfer programs.

We find that inequality in wealth and income dramatically overstate inequality in remaining lifetime spending. For example, the richest 1 percent of forty year olds, where resources are measured as the sum of human plus non-human wealth, have 34.1 percent of the cohort’s total non-human wealth, but account for only 14.5 percent of the cohort’s total remaining lifetime spending. The poorest quintile of forty year olds own just 0.6 percent of the cohort’s wealth, but account for 7.3 percent of its remaining lifetime spending.

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March 27, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

De La Feria Presents The Impact Of Public Perceptions On VAT Rates Policy Online Today At Indiana

Rita de la Feria (University of Leeds) presents The Impact of Public Perceptions on VAT Rates Policy (with Michael Walpole (University of New South Wales)) online at Indiana today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

Rdlf-brazil2018The traditional view in VAT is that excluding certain products from its base decreases the natural regressivity of the tax. Whilst this traditionally view has been consistently put into question over the last thirty years by economic and legal evidence, public perceptions are still heavily influenced by it. Using the old European VAT system and the newer Australian VAT system as case studies we demonstrate how policy debates and changes as regards VAT rates have been heavily influenced by those public perceptions, against the evidence, and how industry groups, which would be set to lose out from specific policies, are able to use the information asymmetry subjacent to those perceptions to defend their interest in favour or against reform.

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March 27, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Pepperdine Symposium: The Impact Of The 2017 Tax Act On Income And Wealth Inequality — Lessons For 2020 And Beyond

Symposium Post

Due to the coronavirus, we had to cancel today's Pepperdine Law Review Symposium, The Impact of the 2017 Tax Act on Income and Wealth Inequality: Lessons For 2020 And Beyond. We are incredibly disappointed that we did not get to spend the day with these wonderful tax scholars and show off our beautiful law school, campus, and city. I feel especially bad for 3L Nicole Mitchell, the law review's symposium editor who conceived of the topic (after our Tax Policy class last Spring), selected and invited the speakers, and made all of the travel, hotel, and restaurant arrangements. However, we are delighted that many of the participants will be publishing their papers in the symposium issue of our law review.

March 27, 2020 in Conferences, Legal Education, Scholarship, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Thursday, March 26, 2020

Thomas Presents Taxing Nudges Online Today At Duke

Kathleen Delaney Thomas (North Carolina) presents Taxing Nudges at Duke yesterday as part of its Tax Policy Workshop Series hosted by Richard Schmalbeck and Lawrence Zelenak:

Thomas (2019)Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default rather than requiring them to actively sign up has dramatically increased enrollment in such plans. Similarly, allowing individuals to earn “wellness points” from attendance at a gym, redeemable at various retail establishments, may improve exercise habits.

A successful nudge should make a desired choice as simple and painless as possible. Yet one source of friction may counteract an otherwise well-designed nudge: taxation.

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March 26, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Taxation Without Immunization: Exercising The Federal Taxing Power To Increase Childhood Vaccination Rates

Nicholas R. Consalvo (J.D. 2020, Florida), Note, Taxation Without Immunization: Exercising the Federal Taxing Power to Increase Childhood Vaccination Rates, 71 Fla. L. Rev. 1513 (2019):

This Note will discuss the need to exercise the taxing power of the federal government in an effort to restore immunization rates to their historically high levels. Recent spikes in unvaccinated children have resulted in global outbreaks of diseases that were near elimination. This Note’s solution to the growing anti-vaccination movement is the implementation of a federal tax plan targeted at parents who—without a valid medical exemption—refuse to vaccinate their children against specific classes of vaccine-preventable diseases. This federal tax plan could take the form of an income-based tax, or loss of child tax credits, enforced against parents based on the age and amount of time their child has remained unvaccinated.

Global efforts to increase vaccination rates and fight outbreaks have already resulted in similar fines and taxes as those advocated in this Note. Currently, the entire public is responsible for the burden of funding initiatives to treat and prevent outbreaks caused by parents who abuse nonmedical exemptions to evade existing vaccination mandates. That burden must shift and fall only upon the individuals who refuse to acknowledge that immunizing against vaccine-preventable diseases is a fundamental necessity for preserving public health.

March 26, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, March 25, 2020

Kamin Presents How Far To Go In Reforming Taxation Of Wealth? Online Today At UC-Irvine

David Kamin (NYU) presents How Far to Go in Reforming Taxation of Wealth? online at UC-Irvine today as part of its Tax Policy Colloquium Series hosted by Joshua BlankVictor Fleischer, and Omri Marian:

Kamin (2018)Reforming the taxation of wealth of individuals is now one of the leading issues among progressive policymakers. It is being prominently discussed on the presidential campaign trail and in the halls of Congress, as a way of addressing our failure to effectively tax some of the richest Americans. Most of these proposals involve significant changes, but some go much further than others and involve more dramatic reforms. The more fundamental reform options come in two basic varieties—annual wealth taxation and accrual income taxation, sometimes known as mark-to-market income taxation. By contrast, the more incremental reforms focus on more targeted changes to the current system with a focus on two key areas: step-up in basis at death and estate and gift taxation. A key question then is how far to go in reforming the taxation of wealth.

This paper presents a qualified case for pursuing the fundamental reform options at least eventually, either annual wealth taxation or accrual taxation.

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March 25, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Tuesday, March 24, 2020

Brooks Presents Redesigning Education Finance: How Student Loans Outgrew the 'Debt' Paradigm Online Today At Georgetown

John Brooks (Georgetown) presents Redesigning Education Finance: How Student Loans Outgrew the "Debt" Paradigm, 109 Geo. L.J. ___ (2019) (with Adam J. Levitin (Georgetown)), online at Georgetown today as part of its Tax Law and Public Finance Workshop Series:

Brooks (John)Federal student loans are fundamentally different from any other type of credit product: they do not require the full repayment of all principal and accrued interest. Instead, borrowers have the contractual right to satisfy their obligations by paying only a percentage of their income for a fixed period of time. In other words, debt forgiveness is contractually baked into the student loan product.

This and other unusual features of federal student loans reveal that the economic structure of student loans has evolved to resemble a federal grant program coupled with a progressive income-based tax on recipients, rather than a true debt product. The education finance system, however, still relies on the legal, financial, and institutional apparatus of “debt” that developed under the pre-2010 structure of the education finance system, which was based on private loans backed by federal government guarantees, rather than today’s direct federal lending program. These legal, financial, and institutional structures are a mismatch with the current program’s economic realities and policy goals.

This Article argues that nearly all of the problems in education finance, including high levels of default, abusive servicing, and even the very idea of a student debt crisis arise from the frictions between the legal and institutional apparatus of “debt” and the economic reality of subsidized finance and progressive, income-based repayment and debt forgiveness.

Accordingly, this Article argues for calling federal student loans what they really are—a tuition grant plus an income surtax on students.

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March 24, 2020 in Legal Ed Scholarship, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (1)

Avi-Yonah: BEPS And The TCJA

Reuven S. Avi-Yonah (Michigan), Constructive Dialogue: BEPS and the TCJA:

US international tax law is commonly conceived as developed in the US and influencing the development of other countries' international tax law. This paper will argue that in the case of the TCJA, the US legislation was heavily influenced by the OECD BEPS project, and that the continuing OECD work in Pillars I and II is likely to have a similar influence on the future development of US international tax law.

March 24, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Monday, March 23, 2020

Bearer-Friend Presents In-Kind Taxpaying: Lessons And Risks Online Today At BYU

Jeremy Bearer-Friend (George Washington) presents In-Kind Taxpaying: Lessons and Risks online at BYU today as part of its Tax Policy Colloquium Series hosted by Cliff Fleming and Gladriel Shobe:

BearerFriend (2020)This Article examines non-cash remittance of tax obligations (ie; paying taxes "in-kind"). It begins by defining in-kind taxpaying, describing the early roots of in-kind taxpaying, and documenting the broad variety of inkind taxpaying in the US. It then discusses the lessons and risks of in-kind taxpaying. In doing so, this Article makes three contributions. First, it improves our definition of taxpaying by identifying the wide variety of inkind remittances that already occur in our current tax system, offering a taxonomy for how to understand in-kind remittances within a modern economy that relies primarily on cash taxes. Second, it refutes the presumption that in-kind remittance of tax obligations is not viable, thus expanding the tax tools available to local, state, and federal governments and demonstrating how narrow presumptions about tax remittance have predetermined core tax policy choices. Third, it confronts the substantial dangers of in-kind taxpaying, using these risks to propose new principles for limiting the design and administration of in-kind taxpaying.

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March 23, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Lesson From The Tax Court: Last Known Address Rules And The Rule Of Law

Dog 2Celebrities are often hard to contact.  “Call my agent” is their standard line.  When do that on their tax returns, they should know that the last known address rules apply to celebrities the same as to regular folk.  That is the lesson in Duane Lee Chapman and Alice E. Smith, Deceased v. Commissioner, T.C. Memo. 2019-110 (Aug. 29, 2019) (Judge Ashford).  There, the taxpayers—famous from the TV reality show Dog the Bounty Hunter—put their agents’ address on their tax returns.  It cost them the opportunity to contest tax liabilities in Tax Court.

The case also shows us another meaning of the term Rule of Law.  That is why I am presenting this case today, as a follow-up on last week’s lesson.  Details below the fold. 

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March 23, 2020 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

Sunday, March 22, 2020

The Top Five New Tax Papers

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

  1. SSRN Logo (2018)[332 Downloads]  A New Global Tax Deal for the Digital Age, by Allison Christians (McGill) & Tarcisio Diniz Magalhaes (McGill)
  2. [154 Downloads]  From Tax Policy to Social Insurance, by Edward Kleinbard (USC)
  3. [149 Downloads]  Important Developments in Federal Income Taxation, by Edward Morse (Creighton)
  4. [142 Downloads]  Wealth Tax Design: Lessons from Estate Tax Avoidance, by Jason Oh (UCLA) & Eric Zolt (UCLA)
  5. [124 Downloads]  The OECD Unified Approach: Nexus, Scope, and Coexisting With DSTs, by Assaf Harpaz (S.J.D. 2020, Duke)

March 22, 2020 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Saturday, March 21, 2020

Book & Ames: The Morass Of The Anti-Injunction Act

Leslie Book (Villanova) & Marilyn Ames (IRS Office of Chief Counsel (retired)), The Morass of the Anti-Injunction Act: a Review of the Cases and Major Issues, 73 Tax Law. ___ (2020):

ABA Tax Lawyer (2019)As Congress gives the Internal Revenue Service more tasks to perform beyond its function of assessing and collecting taxes, courts, practitioners, and academics are struggling to apply the Anti-Injunction Act (AIA) as the IRS promulgates procedures in the course of fulfilling new mandates. The AIA has its origins in the post-Civil War era when the federal government established new procedures ensuring the assessment and collection of taxes. It may seem odd an over 150-year old provision is fueling a growing number of contested and controversial disputes. Yet, the AIA has taken on renewed importance as courts consider challenges to tax regulations and guidance, fueled in part by the increasing importance of administrative law in issues of tax procedure and administration.

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March 21, 2020 in ABA Tax Section, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Friday, March 20, 2020

Weekly SSRN Tax Article Review And Roundup: Layser Reviews Evaluating Economic And Financial Policy Responses To The Coronavirus

This week, Michelle Layser (Illinois) reviews Hiba Hafiz (Boston College), Shu-Yi Oei (Boston College), Diane Ring (Boston College), & Natalya Shnitser (Boston College), Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis, Boston College Law School Legal Studies Research Paper No. 527 (March 2020).

Layser (2018)

News about the COVID-19 coronavirus pandemic has been breaking by the hour, and for people like me who can’t look away from it, the whole situation is positively overwhelming. Fortunately, a team of researchers at Boston College Law School have already pulled together an excellent working paper that provides an analytical framework to bring the key issues into focus. Their paper, which will be “continually updated to reflect current developments,” is a must read for tax and fiscal policy researchers and lawmakers.

The paper begins by describing a trifecta of policy objectives that are relevant to fight the pandemic. The first objective is to provide a social safety net and social insurance for unemployed workers. Unemployment claims are skyrocketing as supply chains are disrupted and businesses are ordered to shut their doors for the purpose of social distancing. The authors identify several choice-of-delivery questions. Should assistance be delivered directly via cash infusions like universal basic income? Should benefits be tied to work? Should aid be provided to individuals or to businesses (to help avoid layoffs)? A central goal of the paper is to explore how these questions might be answered without undermining the other two objectives.

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March 20, 2020 in Coronavirus, Michelle Layser, Scholarship, Tax, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

Polsky Presents Taxing Buybacks At Duke

Gregg Polsky (Georgia) presented Taxing Buybacks (with Daniel Hemel (Chicago)) at Duke yesterday as part of its Tax Policy Workshop Series hosted by Richard Schmalbeck and Lawrence Zelenak:

Polsky (2018)A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging anti-buyback movement includes presidential candidates as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities law changes to deter repurchases, with only passing mention of potential tax law solutions.

This article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that buybacks reduce corporate investment and inappropriately reward executives turn out to be poorly supported. On the other hand, the article identifies legitimate tax-related concerns about the rising buyback tide. Buybacks exacerbate two of the U.S. tax system’s most severe flaws. The first is the “Mark Zuckerberg problem”: the effective nontaxation of firm founders on what is essentially labor income. The second is what we call the “Panama Papers problem”: the use of U.S. capital markets by investors in offshore tax havens to generate tax-free returns.

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March 20, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Hickman: Justice Gorsuch And Waiving Chevron

Kristin E. Hickman (Minnesota), Justice Gorsuch and Waiving Chevron:

The Supreme Court has denied certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, also known as the bumpstocks case. The D.C. Circuit relied on Chevron deference in upholding the regulations banning bumpstocks. In a statement respecting the denial of certiorari, Justice Gorsuch objected to the D.C. Circuit’s reliance on Chevron deference.

One of Justice Gorsuch’s reasons for objecting to Chevron deference in Guedes is well known to Chevron observers. Specifically, the interpretation of the relevant statute contained in the regulation could lead to criminal penalties in the future. I wrote about this concern many years ago. Since then, Judge Jeffrey Sutton of the Sixth Circuit has written eloquently about this issue, first in Carter v. Welles-Bowen Realty, and subsequently in Esquivel-Quintana v. Lynch, arguing that the rule of lenity should take precedence over Chevron deference. The Supreme Court dodged that issue in Esquivel-Quintana by concluding that the statute in that case was otherwise clear. Oddly, although Justice Gorsuch in his Guedes statement cited Judge Sutton’s opinion in Esquivel-Quintana, Justice Gorsuch did not mention the rule of lenity by name. The Supreme Court’s statements regarding Chevron, civil cases, and the rule of lenity have been mixed over the years. In 2014, in a statement regarding the Supreme Court’s denial of certiorari in Whitman v. United States, Justice Scalia called upon the Court in future to consider whether courts “owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement,” also citing Judge Sutton. Although Esquivel-Quintana did not yield such consideration, perhaps Justice Gorsuch’s statement in Guedes will prompt litigants to try again regarding the relationship between Chevron and lenity. ...

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March 20, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Thursday, March 19, 2020

Galle Presents Taxing (And Regulating) Mass Fundraising Online At BYU

Brian Galle (Georgetown) presented The Kindness of Strangers: Taxing (and Regulating) Mass Fundraising at BYU yesterday as part of its Tax Policy Colloquium Series hosted by Cliff Fleming and Gladriel Shobe:

Galle (2020)This is another story about law and time. Once, the giving of gifts was an intimate act. A gift was a kiss or a handshake in another form: it built trust, cemented alliances, celebrated bonds of love and friendship. Today, money is Popped, it is Zelle’d; it is bundled by ActBlue or Gofundme. Transfers that are unearned by labor or mutual exchange now occur remotely between strangers, and at scales that were unimaginable a few decades ago. Law quite simply has not kept up. My focus here will be on the taxation of gifts, but my analysis will stretch from that humble subject to sweep in global inequality, campaign finance, and the legal architecture of crowdfunding.

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March 19, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Avi-Yonah: Why Study Tax History?

Reuven S. Avi-Yonah (Michigan), Why Study Tax History? (reviewing Studies in the History of Tax Law, Vol. 9 (Peter Harris (Cambridge) &  Dominic de Cogan (Cambridge) eds. 2019)):

RAYSince the beginning of this century, John Tiley organized an annual tax history conference at Cambridge, a tradition that was continued after his death under the leadership of Peter Harris. These are the papers from the ninth Cambridge Tax Law History Conference, held in July 2018. In the usual manner, the papers have been selected from an oversupply of proposals for their interest and relevance, and scrutinized and edited to the highest standard for inclusion in this prestigious series. The result is an outstanding book, with many high quality contributions to historical tax research.

The papers fall within five basic themes. Four papers focus on tax theory: Bentham; social contract and tax governance; Schumpeter's 'thunder of history'; and the resurgence of the benefits theory. Three involve the history of UK specific interpretational issues: management expenses; anti-avoidance jurisprudence; and identification of professionals. A further three concern specific forms of UK tax on road travel, land and capital gains. One paper considers the formation of HMRC and another explains aspects of nineteenth-century taxation by reference to Jane Austen characters. Four consider aspects of international taxation: development of EU corporate tax policy; history of Dutch tax planning; the important 1942 Canada–US tax treaty; and the 1928 League of Nations model tax treaties on tax evasion. Also included are papers on the effects of WWI on the New Zealand income tax and development of anti-tax avoidance rules in China.

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March 19, 2020 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through March 2, 2020) 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)  188,632 Reuven Avi-Yonah (Michigan) 6,685
2 Dan Shaviro (NYU) 120,177 David Kamin (NYU) 5,140
3 David Gamage (Indiana-Bloom.) 116,200 Lily Batchelder (NYU) 5,062
4 Lily Batchelder (NYU) 115,955 Daniel Hemel (Chicago) 4,239
5 Daniel Hemel (Chicago) 115,111 Bridget Crawford (Pace) 3,242
6 Darien Shanske (UC-Davis) 109,563 David Gamage (Indiana-Bloom.) 3,122
7 David Kamin (NYU) 104,519 Dan Shaviro (NYU) 2,604
8 Cliff Fleming (BYU)    104,395 Darien Shanske (UC-Davis)  2,406
9 Manoj Viswanathan (UC-Hastings) 101,715 Manoj Viswanathan (UC-Hastings) 2,284
10 Rebecca Kysar (Fordham) 100,562 Richard Ainsworth (BU) 2,214
11 Ari Glogower (Ohio State) 99,333 Ari Glogower (Ohio State) 2,001
12 Michael Simkovic (USC) 44,042 D. Dharmapala (Chicago) 1,996
13 D. Dharmapala (Chicago) 38,290 Ruth Mason (Virginia) 1,996
14 Paul Caron (Pepperdine) 36,475 Robert Sitkoff (Harvard) 1,947
15 Louis Kaplow (Harvard) 32,829 Louis Kaplow (Harvard) 1,890
16 Richard Ainsworth (BU) 29,228 Rebecca Kysar (Fordham) 1,885
17 Ed Kleinbard (USC) 26,574 Brad Borden (Brooklyn) 1,847
18 Vic Fleischer (UC-Irvine) 25,980 Hugh Ault (Boston College) 1,793
19 Jim Hines (Michigan) 24,912 Yariv Brauner (Florida) 1,788
20 Gladriel Shobe (BYU) 24,117 Cliff Fleming (BYU) 1,757
21 Ted Seto (Loyola-L.A.) 24,100 Michael Simkovic (USC) 1,636
22 Brad Borden (Brooklyn) 24,070 Paul Caron (Pepperdine)   1,323
23 Robert Sitkoff (Harvard) 23,785 Margaret Ryznar (Indiana-Indy) 1,282
24 Richard Kaplan (Illinois) 23,652 Leandra Lederman (Indiana Bloom.) 1,207
25 Katie Pratt (Loyola-L.A.) 23,022 Kyle Rozema (Washington U.) 1,152

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March 19, 2020 in Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink | Comments (0)

Wednesday, March 18, 2020

Kysar Presents Interpreting By the Rules Online At Georgetown

Rebecca M. Kysar (Fordham) presented Interpreting By the Rules online at Georgetown yesterday as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Brian Galle:

Kysar (2018)A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress’s procedural frameworks and rules as reliable heuristics to that end. This Article starts from that premise but will add wrinkles to it. The complications stem from the fact that each rule is adopted for distinct reasons and is applied differently across contexts. As investigation into these particularities proceeds, it becomes apparent that the complications are also rooted in something deeper—that Congress’s procedures are often hollow, even fraudulent. Congress, it turns out, breaks its own rules with impunity.

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March 18, 2020 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Cauble: Time For A Tax Return Filing Fee

Emily Cauble (DePaul), Time for a Tax Return Filing Fee, 57 Harv. J. on Legis.  ___ (2020):

The IRS faces the monumental task of verifying, to the extent possible, the tax consequences reported on the hundreds of millions of tax returns filed each year. It does so with meager and shrinking resources. Some taxpayers burden the filing system more than others. At one extreme, a taxpayer who earns only income that is subject to third-party reporting and withholding and who claims the standard deduction adds very little to the IRS’s burden. At the other end of the extreme, a large business engaged in numerous complex transactions the tax treatment of which are not free from doubt demands significant resources if that taxpayer’s claimed tax outcomes are fully examined. In light of this landscape, this Article makes the novel proposal that Congress require payment of a tax return filing fee by some taxpayers. The amount of the fee would vary based on some of the factors that make each taxpayer more or less difficult to audit, with carveouts for difficult-to-audit items that are disproportionately claimed by lower-income individuals.

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March 18, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Regulating In A Pandemic: Evaluating Economic And Financial Policy Responses To The Coronavirus Crisis

Hiba Hafiz, Shu-Yi Oei, Diane M. Ring & Natalya Shnitser (all of Boston College), Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis:

CoronavirusThe United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire.

This Working Paper—which will be continually updated to reflect current developments—will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities.

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March 18, 2020 in Coronavirus, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Tuesday, March 17, 2020

Field: Tax Lawyers As Tax Insurance

Heather M. Field (UC-Hastings), Tax Lawyers as Tax Insurance, 60 Wm. & Mary L. Rev. 2111 (2019) (reviewed by Sloan Speck (Colorado) here):

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

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March 17, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Homeownership Tax Subsidies And Structural Racism

Victoria J. Haneman (Creighton), Contemplating Homeownership Tax Subsidies and Structural Racism, 54 Wake Forest L. Rev. 363 (2019):

An insidious form of racism is facilitated by those who are heedless of structural inequities — or in this instance, the fact that legal structures have been developed to protect the experiences of those who are white, with an underlying obliviousness to the fact that persons of color may have a different experience. Almost 80% of the United States’ four centuries of existence has involved racialized slavery and extreme racial segregation. The subject of structural discrimination should be almost noncontroversial by this point: established social and political structures have been built upon a foundation of racial inequality, inherently conferring power and privilege to some, while perpetuating the marginalization of others. A system that treats equally those who are positioned unequally will only serve to exacerbate the pre-existing inequalities.

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March 17, 2020 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)