Paul L. Caron
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Monday, November 4, 2024

TaxProf Blog Weekend Roundup

Sunday, November 3, 2024

The Top Five New Tax Papers

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

  1. SSRN Logo (2018)[1007 Downloads]  Federal Tax Procedure (2024 Practitioner Ed.), by John Townsend (Houston; Google Scholar)
  2. [905 Downloads]  What is Tax Fairness?, by Rita de la Feria (Leeds; Google Scholar)
  3. [507 Downloads]  Reforming the Taxation of Life Insurance, by Ari Glogower (Northwestern; Google Scholar) & Andrew Granato (Yale; Google Scholar)
  4. [455 Downloads]  Non-(Fully) Harmonised Excise Taxes and Irrebuttable Presumptions, by Rita de la Feria (Leeds; Google Scholar)
  5. [308 Downloads]  An Introduction to the Taxation of Financial Instruments, by Joshua Banafsheha (Cravath)

Editor's Note:  If you would like to receive a daily email with links to tax posts on TaxProf Blog, email me here.

November 3, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, November 2, 2024

5th Circuit Affirms Tax Court: Tax Rule In Political Donations Tightened

Wall Street Journal, Tax Rule In Political Donations Tightened:

Wall Street JournalA federal appeals court narrowed the tax rule that has let conservative and liberal groups pour billions of dollars into political campaigns without disclosing their donors, and the case could restrict the flow of so-called dark money into politics [Memorial Hermann Accountable Care Organization v. Commissioner, No. 23-60608 (3d Cir. Oct. 28, 2024)].

The unanimous opinion from a three-judge panel of the 5th U.S. Circuit Court of Appeals came this week in a healthcare case that didn’t directly address politically active organizations. But the decision—from a conservative court—sets a tighter legal standard for tax-exempt status that the advocates for political donor transparency have long sought. from a three-judge panel of the 5th U.S. Circuit Court of Appeals came this week in a healthcare case that didn’t directly address politically active organizations. But the decision—from a conservative court—sets a tighter legal standard for tax-exempt status that the advocates for political donor transparency have long sought.

The court said groups can’t qualify for tax exemption under Section 501(c)(4) of the tax code if they have a substantial nonexempt purpose. That is a much stricter standard than the one in Internal Revenue Service regulations, which say groups only need a primary purpose that qualifies for the exemption. That has been interpreted to allow tax exemptions for groups that spend 51% of their money on lobbying or other clearly allowed activities—and 49% on politics.

“The people who are making the case that they can do up to 49%, do they have a leg to stand on? Their leg got a lot weaker,” said Phil Hackney, a University of Pittsburgh tax law professor.

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November 2, 2024 in New Cases, Tax, Tax Daily, Tax News | Permalink

Friday, November 1, 2024

The Tax Lawyer Publishes New Issue

Tax lawyerThe Tax Lawyer has published Vol. 77, No. 4 (Summer 2024): 

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November 1, 2024 in ABA Tax Section, Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Tax Policy In The Biden Administration

Florida Symposium: Moore, Loper Bright, Corner Post, And The Future Of The Federal Tax System

Florida tax reviewThe University of Florida Levin College of Law hosts the Florida Tax Review Symposium on Moore, Loper Bright, Corner Post, and the Future of the Federal Tax System today and tomorrow (agenda): 

Friday, November 1:

9:15 - 11:15 AM (zoom

11:30 - 12:30 PM 

1:30 - 2:30 PM: The Future of the Federal Tax System (zoom

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November 1, 2024 in Conferences, Scholarship, Tax, Tax Conferences, Tax Daily, Tax Scholarship | Permalink

Thursday, October 31, 2024

Aprill & Mayer: 21st Century Churches And Federal Tax Law

Ellen P. Aprill (Loyola-L.A.; Google Scholar) & Lloyd Hitoshi Mayer (Notre Dame; Google Scholar), 21st Century Churches and Federal Tax Law, 2024 U. Ill. L. Rev. 939: 

Illinois law reviewFederal tax treatment matters to churches, the term the IRS uses for all types of religious congregations, including synagogues, mosques, and temples. The federal tax provisions most significant for churches and certain entities closely related to them, however, are not those that the public and commentators often assume. Exemption from income tax and the ability of donors to deduct contributions, the benefits that receive the most public attention, in fact provide surprisingly little benefit either to churches in the aggregate or to most individual churches. Their status as organizations taxexempt under section 501(c)(3) of the Internal Revenue Code, moreover, imposes a variety of burdens on them. The burdens include limitations on lobbying and the prohibition on any intervention in campaigns for public office.

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October 31, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

International Tax Implications For Private Equity Investments

Young Ran (Christine) Kim (Cardozo; Google Scholar), International Tax Implications for Private Equity Investments, in Research Handbook on the Structure of Private Equity and Venture Capital (Brian Broughman (Vanderbilt; Google Scholar) & Elisabeth de Fontenay (Duke; Google Scholar) eds., forthcoming 2025). :

Private equity funds (PEFs) have continuously grown over the last couple of decades, making up a “quarter of global M&A activity and as much as half of the leveraged loan issues in the capital markets” (Talmor and Vasvari, 2011, 3). Its popularity is due to the fact that it allows access to capital not available on the public markets. However, discourse on private equity tax is still limited to domestic matters. There is scant research analyzing international tax aspects of PEFs’ cross-border investment, despite the dramatic increase in international capital flows. Indeed, PEFs invest all over the world. American private equity firms were in charge of 32% of international buyout investments between 2003 and 2007. During the same period, 34% of the investments from the European private equity market were deployed in nondomestic countries (Talmor and Vasvari, 2011).

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October 31, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

NYU & ATPI Host Virtual Event Today On What Loper Bright And Moore Mean For Tax

The Tax Law Center and the American Tax Policy Institute host a virtual event today on What Loper Bright & Moore Mean for Tax (recording): 

Tax law center_atpiThe Tax Law Center and the American Tax Policy Institute are hosting a virtual event on Thursday, October 31 from 9:30-11 am EDT on the impact of the Moore andLoper Bright decisions on the tax system, including reflection on underappreciated aspects of these otherwise much-discussed cases. Following a panel on each case, the event will close with reflections from former Assistant Treasury Secretaries for Tax Policy Lily Batchelder and Eric Solomon....

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October 31, 2024 in Conferences, Scholarship, Tax, Tax Conferences, Tax Daily, Tax Scholarship | Permalink

Wednesday, October 30, 2024

Galle Presents How To Tax The Rich: Options For 2025 And Beyond Today At Emory

Brian Galle (Georgetown; Google Scholar) presents How to Tax the Rich: Options for 2025 and Beyond at Emory today as part of its Faculty Colloquium Series:

Brian-galleHow should we pay for the future? This monograph describes and compares major proposals to reform federal individual income and transfer (that is, estate and gift) taxes. The Biden administration and senior Senate Democrats have outlined plans for a “minimum income tax” on multi-millionaires in which very wealthy households (generally those worth over $100 million) would be taxed on the value of appreciated but unsold property. The administration’s proposal was dubbed the Billionaire Minimum Income Tax, or BMIT. Yet some other Senators, and advocates outside government, have pointed to possible constitutional limits on that proposal, as well as offering critiques of its economic and political merits. ... 

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October 30, 2024 in Colloquia, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Avi-Yonah Posts Seven Tax Papers On SSRN

Reuven S. Avi-Yonah (Michigan; Google Scholar) has posted seven tax papers on SSRN:

SSRN Logo (2018)The Up-C, Taxation, and Corporate Governance, 184 Tax Notes Fed. 2493 (Sept. 23, 2024): 

This paper examines the tax and corporate governance issues of umbrella partnership C corporations and considers policy proposals to address those concerns.

Crypto and the Exit Tax, 184 Tax Notes Fed. 2143 (Sept. 9, 2024):

This paper discusses the Ver case and its implications for a constitutional challenge to section 877A.

Sourcing Derivatives: Time to Reverse the Rule?, 184 Tax Notes Fed. 1993 (Sept. 2, 2024):

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October 30, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Zelenak: Why Nix Tip Tax Now?

Lawrence A. Zelenak (Duke; Google Scholar), Why Nix Tip Tax Now?, 185 Tax Notes Fed. 237 (Oct. 14, 2024):

Tax Notes Federal (2022)In this article, Zelenak explores why — more than 100 years after a Treasury regulation declared tips taxable — proposals to exempt tips from federal income tax are only now politically viable, and he examines the design challenges faced by the drafters of proposals to exempt tips.

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October 30, 2024 in Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship | Permalink

Tuesday, October 29, 2024

Kysar Presents Sunrise Legislation Today At UC-Irvine

Rebecca Kysar (Fordham; Google Scholar) presents Sunrise Legislation at UC-Irvine today as part of its Tax Policy Colloquium hosted by Natascha Fastabend:

Rebecca KysarCertain philosophers and legal scholars have advocated for the increased use of “sunrise legislation,” which takes effect only after a delay. In their view, sunrise legislation can obscure the identify of those whom the law benefits and burdens, thereby achieving a “veil of ignorance” effect that can facilitate public-minded reforms. In another context, sunrise legislation has not fared as well, with scholars questioning its function, as well as that of other devices like grandfathering, in mitigating the losses sustained by private parties because of legal reform. This “legal transition” literature generally concludes that the government need not, and should not, compensate for harms caused by legal reforms because doing so induces actors to engage in inefficient behavior.

In recent decades, lawmakers are increasingly using sunrise laws, typically to delay tax increases. They do so not to mask the identify of those burdened by the law or to provide transition relief but to comply with budget rules and meet fiscal pressures.

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October 29, 2024 in Colloquia, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Florida Seeks to Hire A Tax VAP

University of Florida Levin College of Law, Visiting Assistant Professor:

Florida levin college of lawUniversity of Florida Levin College of Law seeks to hire a visiting assistant professor in tax as part of the College’s pursuit of excellence in legal education and scholarship.  The University of Florida, located in Gainesville, FL, currently has the #3 tax law program in the nation and is the flagship university of the third largest state.

We welcome applications from holders of JD, LLM, and SJD degrees as well as from Ph.D. recipients or candidates in a related field. Successful candidates will have strong scholarly potential, commitment to excellence in teaching, and enthusiasm for creating a welcoming environment for all students. 

VAPs will spend one or two years in residence at the Levin College of Law and will teach one class per semester in the JD tax or LLM tax curriculum. VAPs will have the opportunity to participate fully in the law school’s vibrant scholarly community and will benefit from the mentorship of our renowned tax and other faculty. The program’s goal is to prepare VAPs for a future career in legal academia.

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October 29, 2024 in Fellowships & VAPs, Legal Education, Tax, Tax Daily, Tax Prof Jobs | Permalink

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through October 1, 2024) 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)  236,819 1 Jonathan Choi (USC) 19,307
2 Daniel Hemel (NYU) 136,076 2 Amy Monahan (Minnesota) 12,749
3 David Gamage (Missouri-Columbia) 130,051 3 Reuven Avi-Yonah (Michigan) 11,729
4 Dan Shaviro (NYU) 129,612 4 Zachary Liscow (Yale) 6,610
5 Lily Batchelder (NYU) 128,825 5 Kristin Hickman (Minnesota) 5,020
6 Darien Shanske (UC-Davis) 121,965 6 Daniel Hemel (NYU) 4,518
7 David Kamin (NYU) 115,583 7 Bridget Crawford (Pace) 3,980
8 Cliff Fleming (BYU)    109,386 8 David Gamage (Missouri-Columbia) 3,881
9 Ari Glogower (Northwestern) 105,635 9 Kim Clausing (UCLA)     3,816
10 Manoj Viswanathan (UC-SF) 105,423 10 Darien Shanske (UC-Davis) 3,570
11 Rebecca Kysar (Fordham) 104,843 11 D. Dharmapala (UC-Berkeley) 3,516
12 D. Dharmapala (UC-Berkeley) 55,048 12 Brad Borden (Brooklyn) 3,457
13 Michael Simkovic (USC) 51,021 13 Robert Sitkoff (Harvard) 3,026
14 Louis Kaplow (Harvard) 44,504 14 Louis Kaplow (Harvard) 2,954
15 Jonathan Choi (USC) 42,866 15 Jordan Barry (USC) 2,698
16 Paul Caron (Pepperdine) 42,583 16 David Weisbach (Chicago) 2,663
17 Bridget Crawford (Pace) 41,555 17 Michael Simkovic (USC) 2,599
18 Richard Ainsworth (Boston University) 40,656 18 Kyle Rozema (Northwestern) 2,579
19 Robert Sitkoff (Harvard) 36,088 19 Ruth Mason (Virginia) 2,544
20 Amy Monahan (Minnesota) 35,038 20 Brian Galle (Georgetown) 2,126
21 Brad Borden (Brooklyn) 34,962 21 Dan Shaviro (NYU) 2,063
22 Ruth Mason (Virginia) 33,228 22 Richard Ainsworth (Boston University) 1,981
23 Kim Clausing (UCLA) 31,484 23 Ellen Aprill (Loyola-L.A.) 1,962
24 Vic Fleischer (UC-Irvine) 31,455 24 John Brooks (Fordham) 1,939
25 Ed Kleinbard (USC) 30,555 25 Young Ran (Christine) Kim (Cardozo) 1,892

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October 29, 2024 in Legal Education, Scholarship, Tax, Tax Daily, Tax Prof Rankings, Tax Scholarship | Permalink

Monday, October 28, 2024

Field: Tax Enforcement by the Private Sector—Deputizing Tax Insurers

Heather M. Field (UC-San Francisco; Google Scholar), Tax Enforcement by the Private Sector: Deputizing Tax Insurers, 99 Ind. L.J. 1179 (2024): 

Indiana law journalThe IRS is outgunned when trying to ensure compliance by large corporations and other sophisticated taxpayers. The private sector can help. Private sector actors, such as financial institutions, employers, and whistleblowers, have been valuable allies in the IRS’s efforts to improve compliance and enforcement. This Article argues for using another, largely overlooked, private sector party—tax insurers—to expand the IRS’s enforcement abilities. Tax insurers insure sophisticated taxpayers’ uncertain tax positions (e.g., the tax-free treatment of a corporate spinoff or tax credits critical to a renewable energy project). For a premium, a tax insurer agrees to pay any additional taxes owed with interest and penalties (up to the policy limit) if an insured tax position is successfully challenged by a tax authority. The tax insurance industry has grown dramatically since the mid-2010s, but scholars and policymakers pay little attention to its enforcement-enhancing potential. This is a mistake because insurers have informational, expertise, and capacity advantages over the IRS, because of the industry’s recent explosive growth, and because more robust enforcement is needed among precisely those taxpayers served by tax insurers.

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October 28, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Call For Papers: The Law And Economics Of Wealth Management And Transmission

Call For Papers

Call for papersThe Global Wealth Management Project at George Mason University Antonin Scalia Law School is delighted to announce the receipt of a grant from the American College of Trust and Estate Counsel (ACTEC) Foundation to host a one-day academic symposium on Friday September 26, 2025, on the theme "The Law and Economics of Wealth Management and Transmission." Here is the symposium description:

The symposium theme is "The Law and Economics of Wealth Management and Transmission."  The theme is deliberately broad. First, law and economics refers to the economic analysis of law in its widest sense. It embraces positive and normative approaches as well as rational-choice and behavioral approaches. 

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October 28, 2024 in Conferences, Scholarship, Tax, Tax Conferences, Tax Daily, Tax Scholarship | Permalink

2024 Tax Notes Student Writing Competition Winner: Nicholas Lott (BYU)

Nicholas Lott (J.D. & MAcc 2025, BYU), New York, Amazon, and Company-Specific Tax Incentives: A Microcosm of a National Problem, 184 Tax Notes Fed. 2525 (Sept. 23, 2024):


Nicholas LottIn this article, Lott centers on the polarizing company-specific tax incentive that New York offered Amazon to entice it to construct its second headquarters in Long Island City. Through the lens of equity, efficiency, and simplicity, this article analyzes New York and Amazon’s agreement and then extrapolates the analysis to a broader analysis of all company specific tax incentives. 

Nicholas Lott is a J.D./MAcc candidate at Brigham Young University and an associate editor at the BYU Law Review. He works in-house at SnapOne, a NASDAQ-listed technology firm, and upon graduation will join the legal team at Vinson & Elkins in Houston, Texas. When Lott is not working or studying, he enjoys spending time with his wife and preparing for the imminent arrival of their daughter.

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October 28, 2024 in Legal Education, Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship | Permalink

TaxProf Blog Weekend Roundup

Sunday, October 27, 2024

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 paper returning to the list at #5.

  1. SSRN Logo (2018)[987 Downloads]  Federal Tax Procedure (2024 Practitioner Ed.), by John Townsend (Houston; Google Scholar)
  2. [894 Downloads]  What is Tax Fairness?, by Rita de la Feria (Leeds; Google Scholar)
  3. [498 Downloads]  Reforming the Taxation of Life Insurance, by Ari Glogower (Northwestern; Google Scholar) & Andrew Granato (Yale; Google Scholar)
  4. [449 Downloads]  Non-(Fully) Harmonised Excise Taxes and Irrebuttable Presumptions, by Rita de la Feria (Leeds; Google Scholar)
  5. [347 Downloads]  International Tax Scholarship and International Tax Activism, by Wolfgang Schön (Max Planck) (reviewed by Young Ran (Christine) Kim (Cardozo; Google Scholarhere)

Editor's Note:  If you would like to receive a daily email with links to tax posts on TaxProf Blog, email me here.

October 27, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, October 26, 2024

Beauty In Desolation: Addressing America's Waste Crisis Through Tax Reform

Robert A. Sherrill (J.D. 2024, USC), Note, Beauty in Desolation: Addressing America's Waste Crisis through Tax Reform, 33 S. Cal. Interdisc. L.J. 209 (2023): 

Southern Califoria Interdisciplinary Law JournalContaminated waste sites proliferate across the United States. However, current cleanup incentives fail to induce necessary private sector engagement. Environmental taxation can be a crucial instrument for addressing this issue. This Note begins by exploring why neither the free market, nor regulation is well-suited to manage contamination cleanups on abandoned properties. The Note then proposes a two-phase tax reform for addressing hazardous waste. First, Congress should expand the incentives available to developers to perform the necessary cleanups. Second, an effluent tax should be implemented on large quantity hazardous waste producers to promote the polluter-pays principle and to enhance the efficiency of waste management. 

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October 26, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Friday, October 25, 2024

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Taxing The Wealthy At The State Level By Galle, Gamage & Shanske

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews a recent article by Brian D. Galle (Georgetown; Google Scholar), David Gamage (Missouri; Google Scholar), & Darien Shanske (UC-Davis; Google Scholar), Money Moves: Taxing the Wealthy at the State Level, 112 California L. Rev. __ (2025). 

Christine Kim

While there are many tax reform proposals to tax the super-rich these days, the discussion has centered on the federal or national tax level. On the other hand, Brian Galle (Georgetown), David Gamage (Missouri), and Darien Shanske (UC Davis) have been brilliantly contributing to state-level tax policies to address inequality. A notable piece is Solving the Valuation Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. 1257 (2023, reviewed here), where the authors developed the unliquidated tax reserve accounts (ULTRA) system as a part of drafting comprehensive annual wealth tax reform proposal for the state of California. Recently, the authors produced another excellent piece on the state-level tax proposal for taxing the super-rich—Money Moves: Taxing the Wealthy at the State Level, 112 Calif. L. Rev. ___ (2025), which is worth introducing for this week's review.

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October 25, 2024 in Christine Kim, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Tax Policy In The Biden Administration

Next Week’s Tax Workshops

Next Week's Tax Workshops - twitterTuesday, October 29: Rebecca Kysar (Fordham; Google Scholar) will present Sunrise Legislation as part of the UC-Irvine Tax Policy Colloquium. If you would like to attend, please RSVP

Wednesday, October 30: Brian Galle (Georgetown; Google Scholar) will present How to Tax the Rich: Options for 2025 and Beyond as part of the Emory Faculty Colloquium Series. 

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October 25, 2024 in Colloquia, Legal Education, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Ryan Presents Mothers In Jails: A Taxing Matter Today At Cumberland

Kerry A. Ryan (St. Louis) presents Mothers in Jails: A Taxing Matter at Cumberland today as part of its Tax Policy Speaker Series hosted by Tracey Roberts:

Kerry RyanThis year, about 200,000 women will spend a day in prison or jail, separated from their families. Women are disproportionately confined in local jails, as opposed to state or federal prisons. A majority of women in jails have not been convicted of a crime and are awaiting trial, and most of these women are mothers (and most are single mothers). Many women, particularly primary caregivers, simply cannot afford bail so must await trial in jail. Even once convicted, women are more likely to be serving a sentence in jail rather than prison.

Prior literature detailed the devastating economic and personal consequences of incarceration on mothers. In addition, several recent articles detail the negative tax and social benefit effects of working while confined in state or federal prisons. This article contributes to both of those literatures by focusing on the unique tax issues faced by single mothers incarcerated in local jails, as opposed to state or federal prisons. This article will demonstrate that the short-term nature of most jail confinements and the existence of pre-trial detainees in the jail population impacts the availability of certain family-related tax benefits to detained (or previously detained) single mothers.

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October 25, 2024 in Colloquia, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Thursday, October 24, 2024

The Tax Lawyer Publishes New Issue

The Tax Lawyer has published Vol. 77, No. 3 (Spring 2024): 

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October 24, 2024 in ABA Tax Section, Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Symposium: HBO's Succession

HBO Original Succession
Symposium, HBO's Succession, 73 DePaul L. Rev. 745-992 (2024): 

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October 24, 2024 in Conferences, Legal Ed Scholarship, Legal Education, Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Fleming, Peroni & Shay: The U.S. Tax System’s Curious Embrace Of Manufacturing Job Losses

J. Clifton Fleming Jr. (BYU; Google Scholar), Robert J. Peroni (Texas) & Stephen E. Shay (Boston College; Google Scholar), The U.S. Tax System’s Curious Embrace of Manufacturing Job Losses185 Tax Notes Fed. 35 (Oct. 7, 2024):

Tax Notes Federal (2022)In this article, the authors explain how the subpart F regime and the global intangible low-taxed income regime together contribute to a long-running decline in domestic manufacturing employment, and they argue that the best approach to fixing the problem is worldwide taxation without deferral, not pillar 2.

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October 24, 2024 in Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship | Permalink

Wednesday, October 23, 2024

Zhang: The Origins Of U.S. Territorial Taxation And The Insular Cases

Alex Zhang (Emory; Google Scholar), The Origins of U.S. Territorial Taxation and the Insular Cases, 134 Yale L.J. F. __ (2024):

Yale law journalThis Essay examines Congress's design of territorial revenue systems during 1898-1900. Eager to protect the federal fisc, lawmakers instituted tariffs between Puerto Rico and the mainland. Their choices segregated the territories from the federal fiscal apparatus, prompted the Insular Cases, and created the territories' distinctive tax status as foreign countries.

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October 23, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Ordower: Tax As Hybrid Law—Borrowing And Convergences

Henry Ordower (St. Louis; Google Scholar), Tax As Hybrid Law: Borrowing and Convergences, 11 J. Int’l & Compar. L. 259 (2024):

Journal of international and comparative lawThis article argues that tax is a hybrid of civil and common law, public and private law, and is cross-disciplinary. It observes that tax law has become an all-purpose tool for legislators. It seeks to demonstrate how the US, a common law jurisdiction, has turned to civil law models for taxation while civil law jurisdictions and the European Union have sought common law models to combat tax avoidance. The ubiquity of tax and its public law influence on private law transactions, its cross disciplinary nature, and its deployment as a legislative tool to manage the economy make it a candidate for reform targeting cross-border uniformity and systemic convergence—a motion that has begun and should continue to reach full uniformity.

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October 23, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Challenging The Johnson Amendment: What SAFE SPACE Gets Right — And Wrong

Benjamin Leff (American; Google Scholar), Challenging the Johnson Amendment: What SAFE SPACE Gets Right — and Wrong, 185 Tax Notes Fed. 51 (Oct. 7, 2024):

Tax Notes Federal (2022)In this article, Leff argues that the IRS’s interpretation of section 501(c)(3)’s prohibition on campaign intervention (the Johnson Amendment) is unconstitutional, as claimed in a recent Tax Court petition, but that the petitioner in that case unnecessarily asserts a dangerously broad strategy for vindicating charities’ free speech rights.

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October 23, 2024 in Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship | Permalink

Tuesday, October 22, 2024

Zhang Presents Fiscal Autonomy In Subnational Taxation Today At UC-Irvine

Alex Zhang (Emory; Google Scholar) presents Fiscal Autonomy in Subnational Taxation at UC-Irvine today as part of its Tax Policy Colloquium hosted by Natascha Fastabend:

Alex zhangWithin the United States, two subnational governments have distinctive powers to tax: Native tribes and U.S. territories. Native tribes can tax their own members and the commercial activities of non-Indian actors on reservations. The Supreme Court has grounded this power in both tribal sovereignty and the federal objective of fostering tribal self-governance. But its jurisprudence — in the form of preemption, plenary power, and tax principles — has hollowed out the Native tax base, forcing tribes to compete fiercely with Congress, states, and localities for revenue. By contrast, the U.S. territories face no tax competition. Their residents are generally exempt from federal income and estate taxes. Congress has even delegated to some territories the authority to deviate from federal income-tax rules. Pursuant to this delegation, Puerto Rico has enacted a host of tax incentives to attract the ultra-wealthy to migrate from the mainland, fueling accusations of tax shelter and settler colonialism. The divergent tax treatment of Native and territorial communities paradoxically rests on the same rationale: fiscal autonomy.

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October 22, 2024 in Colloquia, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

WSJ: He Was A Monk, Then A Billionaire, And Now An Alleged Tax Cheat

Wall Street Journal, He Was a Monk, Then a Billionaire and Now an Alleged Tax Cheat:

BhargavaManoj Bhargava dropped out of Princeton University in the 1970s to find enlightenment in India. He lived as a monk and grew close to the family of a prominent guru.

When Bhargava later struck it rich selling 5-Hour Energy caffeine shots, he decided to help India’s needy. He gave away hundreds of millions of dollars for the guru’s family members to disburse to charity and started a lab near his home outside Detroit for do-good inventions such as a stationary bike producing electricity.

Bhargava has said he follows a “zero-profit” business model of making money from the rich to give to the poor. He branched out into medical devices, a “super water” and a media empire that briefly made him the publisher of Sports Illustrated.

Not so fast, say U.S. tax authorities. They have another take on Bhargava’s Robin Hood moves: tax abuse.

Bhargava improperly lowered his tax bill by gifting a $624 million stake in his 5-Hour Energy partnership to charity, then buying it back with an IOU without ever giving up control of the company and its drink formula, the Internal Revenue Service alleged in civil tax court. It separately launched a criminal probe with the Justice Department into whether Bhargava used a daughter-in-law of the Indian guru, a Canadian citizen named Indu Rawat who heads his charitable giving, as a figurehead to shield additional wealth from U.S. taxes, according to people familiar with the matter and tax court filings.

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October 22, 2024 in Tax, Tax Daily, Tax News | Permalink

Monday, October 21, 2024

Grinberg Delivers Lecture On Pillar 2 And The OECD Tax Function Today At Vienna University

Itai Grinberg (Georgetown) delivers the 2024 Klaus Vogel Lecture at Vienna University today on Pillar 2 and the OECD Tax Function:

Itai grinbergThe two pillar international tax deal agreed in 2021 represented the most important international economic agreement thus far this century. At the time, that political agreement was both a diplomatic success for the Biden Administration and a success for G20-based global economic governance.

Now, however, there is much uncertainty, including with respect to the enforcement of the global minimum tax (“Pillar 2”) and as to whether the UN will supersede the OECD as a venue for discussions of international tax issues. Furthermore, the reality is that Pillar 2’s two key enforcement rules – the IIR and the UTPR – have become almost exclusively OECD Member State projects. Given that Pillar 1 is likely to fail, the OECD’s credibility as a key international tax forum turns on whether Pillar 2 succeeds. In this environment, not only the fate of Pillar 2 but the OECD’s leading role as an international tax venue likely requires reestablishing the OECD’s body for lead member state tax official dialogue — known as the “Committee on Fiscal Affairs” when it meets in its Member State only configuration — as a robust body.

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October 21, 2024 in Colloquia, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Cui: False Idols In The Early History Of International Taxation

Wei Cui (British Columbia; Google Scholar), False Idols in the Early History of International Taxation

A careful reading of recent scholarship on the early history of international taxation, especially on the League of Nations' work on "double taxation," ought to have dislodged many myths about this history. But more often than not, such scholarship has been taken to offer mere details without altering our fundamental understanding. This paper suggests that this reception reflects a longstanding pattern in discourses about international taxation: participants perpetuate or cling onto narratives that are easily seen to be false. 

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October 21, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Kamin: The Macroeconomic Context For A 2025 Tax Deal

David Kamin (NYU), The Macroeconomic Context for a 2025 Tax Deal, 184 Tax Notes 2673 (Sept. 30, 2024):

Tax Notes Federal (2022)In this article, Kamin argues that 2025 looks like a year in which fiscal consolidation would be appropriate given the macroeconomic context for the expiring provisions of the Tax Cuts and Jobs Act, and he explains that fiscal consolidation would preferably come in the form of at least fully financing tax cut extensions. But he adds that allowing the tax cuts to expire should be seen as an economically viable alternative if a deal meeting key tax reform goals is not available.

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October 21, 2024 in Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship | Permalink

TaxProf Blog Weekend Roundup

Sunday, October 20, 2024

The Top Five New Tax Papers

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

  1. SSRN Logo (2018)[961 Downloads]  Federal Tax Procedure (2024 Practitioner Ed.), by John Townsend (Houston; Google Scholar)
  2. [851 Downloads]  What is Tax Fairness?, by Rita de la Feria (Leeds; Google Scholar)
  3. [483 Downloads]  Reforming the Taxation of Life Insurance, by Ari Glogower (Northwestern; Google Scholar) & Andrew Granato (Yale; Google Scholar)
  4. [474 Downloads]  Tax Regulations After Loper Bright, by Andy Grewal (Iowa; Google Scholar)
  5. [439 Downloads]  Non-(Fully) Harmonised Excise Taxes and Irrebuttable Presumptions, by Rita de la Feria (Leeds; Google Scholar)

Editor's Note:  If you would like to receive a daily email with links to tax posts on TaxProf Blog, email me here.

October 20, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, October 19, 2024

Collectibles Tax And The Art Of The Buying, Renting, And Selling Virtual Land NFTs

Devyn Darius Arredondo (J.D. 2024, Arizona), Note, Collectibles Tax and the Art of Buying, Renting, and Selling Virtual Land NFTs, 66 Ariz. L. Rev. 505 (2024): 

Arizona law reviewVirtual land non-fungible tokens (“NFTs”) used in the metaverse have been around for fewer than five years. As such, there is very little guidance from the Internal Revenue Service (“IRS”) regarding how transactions dealing in virtual land are taxed federally. This Note covers an introduction to NFTs and their underlying technology and development. Then, it addresses the differing tax implications of buying virtual land, renting virtual land (both from a landlord and tenant perspective), and selling virtual land. The IRS solicited public comments on how best to approach NFTs and various relevant considerations. 

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October 19, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Friday, October 18, 2024

Weekly SSRN Tax Article Review And Roundup: Speck Reviews A Theory Of The REIT By Oh & Verstein

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Jason Oh (UCLA) & Andrew Verstein (UCLA; Google Scholar), A Theory of the REIT, 133 Yale L.J. 755 (2024).

Sloan-speck

In A Theory of the REIT, Jason Oh and Andrew Verstein reconceptualize the connections between corporate law and tax law to illuminate the viability and attractiveness of real estate investment trusts (REITs) as an investment vehicle. Oh and Verstein ask why public equity REITs have burgeoned in size and number over the last three decades, when their “Rube Goldberg governance structure” runs contrary to well-traveled tenets of corporate law (818). More specifically, Oh and Verstein observe that REITs are largely immune to hostile takeovers and generally prohibited from retaining earnings. 

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October 18, 2024 in Scholarship, Sloan Speck, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup | Permalink

Tax Policy In The Biden Administration

Next Week’s Tax Workshops

Next Week's Tax Workshops - linkedinMonday, October 21: Itai Grinberg (Georgetown) will deliver the 2024 Klaus Vogel Lecture on Pillar 2 and the Future of Global Minimum Tax Enforcement. If you would like to attend, please contact Barbara Ender

Tuesday, October 22: Alex Zhang (Emory; Google Scholar) will present Fiscal Autonomy in Subnational Taxation as part of the UC-Irvine Tax Policy Colloquium. If you would like to attend, please contact Natascha Fastabend

Tuesday, October 22: Louis Kaplow (Harvard) will present Optimal Income Taxation and Charitable Giving, 38 Tax Pol’y & Econ. __ (2024), as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro

Wednesday, October 23Daniel Shaviro (NYU; Google Scholar) will present New Frontiers in Medicine and the Income Tax's Role as a Backup Health Insurance System, 74 Tax. L. Rev. ___ (2024), as part of the Mizzou Law Health Law Colloquium. If you would like to attend, please contact David Gamage.

Friday, October 25: Kerry A. Ryan (St. Louis) will present Mothers in Jails: A Taxing Matter as part of the Cumberland Tax Policy Speaker Series. If you would like to attend, please contact Tracey Roberts.

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October 18, 2024 in Colloquia, Legal Education, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Zhang Presents Fiscal Autonomy In Subnational Taxation Today At Boston College

Alex Zhang (Emory; Google Scholar) presents Fiscal Autonomy in Subnational Taxation at Boston College today as part of its Tax Policy Collaborative hosted by Diane Ring:

Alex zhangWithin the United States, two subnational governments have distinctive powers to tax: Native tribes and U.S. territories. Native tribes can tax their own members and the commercial activities of non-Indian actors on reservations. The Supreme Court has grounded this power in both tribal sovereignty and the federal objective of fostering tribal self-governance. But its jurisprudence—in the form of preemption, plenary power, and tax principles—has hollowed out the Native tax base, forcing tribes to compete fiercely with Congress, states, and localities for revenue. By contrast, the U.S. territories face no tax competition. Their residents are generally exempt from federal income and estate taxes, and Congress has even delegated to some territories the authority to deviate from federal income-tax rules. Pursuant to this delegation, Puerto Rico has enacted a host of tax incentives to attract the ultra-wealthy to migrate from the mainland, fueling accusations of tax shelter and settler colonialism. The divergent tax treatment of Native and territorial communities paradoxically rests on the same rationale: fiscal autonomy.

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October 18, 2024 in Colloquia, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Thursday, October 17, 2024

Avi-Yonah & Wang: Tax Delegation Post-Loper Bright

Reuven S. Avi-Yonah (Michigan; Google Scholar) & JJ Wang (J.D. 2025, Michigan), Tax Delegation Post-Loper Bright

In its recent decision in Loper Bright, the Supreme Court has fundamentally shifted the contours of judicial deference to administrative interpretations by repealing the Chevron doctrine. However, while the Court has curtailed deference, it simultaneously underscored the legitimacy of statutory delegation to agencies. The Internal Revenue Code (Code) is the most intricate legislative text within the U.S. legal framework, necessitating significant technical expertise for its application. It is, therefore, unsurprising that Congress often delegates authority to the IRS for the execution of the statute. In light of the Court's decision in Loper Bright, it becomes imperative to clarify the parameters of permissible tax delegation.

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October 17, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Critical Approaches To Taxation & Society Hosts Conference On Taxation Without Borders

Critical Approaches to Taxation and Society hosts a conference on Taxation without Borders: Contemporary and Future Challenges for the Power to Tax (program): 

Critical approaches to taxation and societyKeynote Addresses: 

  • Allison Christians (McGill; Google Scholar), International Tax At A Critical Moment: Where Are We, How Did We Get Here, And Where Are We Going?
  • Steven Dean (Boston University; Google Scholar), Fear of a Black Planet: Global Jim Crow and the Birth of the OECD
  • Tsilly Dagan (Oxford; Google Scholar), The GLoBE Minimum Tax — What Can We Learn From LDCs Consent?

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October 17, 2024 in Conferences, Scholarship, Tax, Tax Conferences, Tax Daily, Tax Scholarship | Permalink

ATPI Symposium: Hidden Gender Bias In Tax Law And Policy

American tax policy institute and pace environmental law review
The American Tax Policy Institute hosts a gender and tax symposium today and tomorrow: It’s a Man’s World: Revealing and Addressing Hidden Gender Bias in Tax Law and Policy:

Thursday, October 17 

4:30 PM: Academic Roundtable 

  • Irina Ewing (IRS), The Price of Inequality: The Impact of U.S. Tax Policy on Gender Economic Disparities
    • Commentator: Phyllis Taite (Oklahoma)
  • Ashley R. Hilliard (North Carolina Central), Unattached and Taxed
  • Diane Kemker (Pepperdine, LMU; Google Scholar), Exploring the Co-Constitutive Nature of Gender and Disability Through the Hidden Sexism and Ableism in the Medical Expense Deduction
  • Lauren Shores Pelikan (Missouri-Columbia), Tax Reform to Solve the Childcare Crisis in Two Parts: Affordability and Availability
    • Commentator: Michelle Drumbl (Washington & Lee)
  • Natasha Varyani (Roger Williams), Finding Her Place: A Comparative Analysis of Incentive Opportunities in Preferential Rates of Municipal Tax in India and the United States

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October 17, 2024 in Conferences, Legal Ed Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Daily, Tax Scholarship | Permalink

Wednesday, October 16, 2024

Raskolnikov Presents Taxes And Tournaments Today At Columbia

Alex Raskolnikov (Columbia) presents Taxes and Tournaments, 2024 Mich. St. L. Rev. ___ at Columbia today as part of its Faculty Workshop Series:

Alex raskolnikovWhat is the best way to reduce economic inequality? Economists, lawyers, political philosophers and politicians have pondered this question for decades. Yet there is another group of savvy and highly motivated individuals who have been thinking about redistribution for just as long. Commissioners of the National Football League, the National Basketball Association, the National Hockey League, and Major League Baseball together with team owners and player unions have been inventing and reinventing ways to redistribute resources, and they continue to do so today. The same is true of the President of National Collegiate Athletic Association along with the heads of Big Ten, Big Twelve and other powerful athletic conferences. This Article asks what we can learn from their experiences.

The answer, it turns out, is that we can learn quite a bit. Key tax policy questions—whether it is better to have one tax base or many, whether non-tax rules should take distributional effects into account, whether it is better to redistribute in cash or in kind, whether redistribution should take place at the national or local level, and whether predistribution is superior to redistribution—all arise in major sports competitions.

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October 16, 2024 in Colloquia, Scholarship, Tax, Tax Daily, Tax Scholarship, Tax Workshops | Permalink

Tax Obedience During COVID Times: A Role-Play Illustrating Tax Policy Dilemmas

Nellie Munin (Zefat Academic College; Google Scholar) & Yael Efron (Zefat Academic College; Google Scholar), Tax Obedience During COVID Times: A Role-Play Illustrating Tax Policy Dilemmas, 75 Wash. U. J.L. & Pol’y 189 (2024): 

Washington university journal of law and policyProfessors at Zefat Academic College (ZAC) School of Law in Israel are engaging students with innovating pedagogical techniques in tax law instruction. Societal and educational challenges caused by the global COVID-19 pandemic shifted the professors’ focus from transferring knowledge and information to developing innovating learning methods and practicing skills. The professors have designed and implemented a role play to illustrate universal challenges of tax avoidance faced by tax regimes globally caused by the economic impact of COVID-19. This article describes the simulation, the considerations underlying its design and conduct, as well as the analysis of its didactic value, in light of relevant literature. The authors posit that students in the modern classroom are better served when students engage in simulations that explore the theoretical underpinnings of legal frameworks by requiring practical application to real world issues. 

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October 16, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Why 501(c)(3) Tax-Exempt Status Does Not Count As Federal Financial Assistance Under Title IX

William A. Jordan (J.D. 2024, Iowa), Note, Why 501(c)(3) Tax-Exempt Status Does Not Count as Federal Financial Assistance Under Title IX, 109 Iowa L. Rev. 1807 (2024): 

Iowa law reviewTwo federal district courts in Maryland and California have ruled that private schools are subject to Title IX of the Education Amendments of 1972 because their tax-exempt status under Section 501(c)(3) of the Internal Revenue Code counts as federal financial assistance. This major development in the interpretation of Title IX threatens to subject tax-exempt private schools not only to Title IX, but to a number of other statutes and regulations that apply to recipients of federal financial assistance. 

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October 16, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink

Tuesday, October 15, 2024

Taxing “Borrow” In “Buy/Borrow/Die”

Colin J. Heath (J.D. 2024, NYU), Note, Taxing "Borrow" in "Buy/Borrow/Die", 99 N.Y.U. L. Rev. 717 (2024): 

Nyu-law-reviewThe United States federal income tax contains a flaw: Because it reaches capital gains only after a “realization” event, it permits owners of highly appreciated assets to defer their tax liability by holding them and refusing to sell. Worse yet, easily available debt allows those owners to consume from their “unrealized” gains while continuing to defer tax. As Professor Edward McCaffery identified in 2012, consumption and deferral through secured borrowing, coupled with the stepped-up basis death benefit from section 1014 of the Internal Revenue Code, create an opportunity for individuals to avoid lifetime income tax and net estate tax. This strategy, known as “buy/borrow/ die,” contributes to consumption inequality and, by extension, America’s growing wealth inequality.

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October 15, 2024 in Scholarship, Tax, Tax Daily, Tax Scholarship | Permalink