Dagan Presents Unbundled Tax Sovereignty: Refining The Challenges Today At Brooklyn

Tsilly Dagan (Oxford; Google Scholar) presents Unbundled Tax Sovereignty: Refining the Challenges at Brooklyn today as part of its Colloquium on International Economic Law hosted by Steven Dean and Julian Arato:

Tax sovereignty under globalization is at risk of unraveling. Not only–as is often argued — because international organizations or other states exert external power on sovereign states. Instead, it is the process of fragmentation of state sovereignty that undermines its own foundations. My main claim is that globalization increasingly alters the interaction between states and their constituents. Globalization, and the choices and flexibility it offers (some) taxpayers, threatens to transform taxpayers from members in a political community into consumers of public goods and services. Such transition, I argue, undermines the basis for state's coercive power. Importantly, this transformation does not affect all individuals in the same way. It varies between taxpayers, between different stages of their lives as well as among different aspects of their lives. Hence, in reality, taxpayers' interactions with the state create a mosaic of differing shades and patterns of consumer-member combinations. This diversity has many virtues, but it also entails serious pitfalls, which is why I argue that — in order to ensure social contracts' continued legitimacy — states should re-configure their social contracts with their constituents to accommodate these trade-offs.

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Call For Presentations: UC-Irvine Tax Symposium

Call For Presentations: UC-Irvine Tax Sympsium:

The Graduate Tax Program at the University of California, Irvine School of Law will host its 4th Annual UCI/Lavar Taylor Tax Symposium on March 21, 2022. Due to the ongoing COVID situation, we will host the symposium virtually. The theme this year is The Global Tax Deal and the Changing International Tax Order.

The purpose of this full-day symposium is to launch an in-depth discussion on the “global tax deal” adopting the OECD two-pillar framework, signed by 136 countries last October. We are interested in submissions for proposed presentations on the ramifications of the global deal from any point of view, including, but not limited to: economic, political, legal, social, racial, as well as any critical perceptive.

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The Politics Of Religion And Taxation: Keeping Church And State Separate

Mary Ann Hofmann (Appalachian State; Google Scholar), The Politics of Religion and Taxation: Keeping Church and State Separate, 22 J. Mgmt. Pol'y & Prac. __ (2021):

This paper discusses tax laws and federal court decisions relating to the taxation or exemption of religious non-profit organizations. In a democracy characterized by separation of church and state, what role does the federal government play in regulating the activities and financial transactions of churches and other religious non-profit organizations? What are the federal statutory requirements regarding tax exemption for churches, tax deductibility of donations to churches, and political activity by churches, and are these requirements justified? Does this regulation interfere with the free exercise of religion, or does the federal government violate the establishment clause of the First Amendment by providing inappropriate tax benefits to churches and clergy?

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The Top Five New Tax Papers

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

1. [564 Downloads]  On the Evolving VAT Concept of Fixed Establishment, by Rita de la Feria (Leeds; Google Scholar)
2. [308 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
3. [223 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
4. [205 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
5. [190 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)

Federalizing Tax Justice

Reuven Avi-Yonah (Michigan), Orli Avi-Yonah, Nir Fishbien (S.J.D. 2019, Michigan), New York) & Haiyan Xu (University of International Business and Economics Law School), Federalizing Tax Justice, 53 Ind. L. Rev. 461 (2020):

Most large federal countries have explicit ways to reduce the economic disparities between more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign and the federal government does not distribute revenues to equalize their spending capacity. While the overall impact of the federal tax and transfer system may be to shift revenues from richer to poorer states, this is not acknowledged and to the extent it is discussed in the literature it is generally condemned as unfair to the states that send more revenues to Washington than they get back in federal transfer payments. Nor is it politically likely that the US will adopt a formal fiscal equalization mechanism.

This paper proceeds from the normative position that the increasing gap between the richer and poorer areas of the US is a problem that requires federal intervention and that the federal tax system can play a role in that intervention.

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Next Week’s Tax Workshops

Monday, January 24: Tsilly Dagan (Oxford; Google Scholar) will present Unbundled Tax Sovereignty: Refining the Challenges as part of the Brooklyn Colloquium on International Economic Law. If you would like to attend, please email Steven Dean.

Tuesday, January 25: Orly Mazur (SMU; Google Scholar) will present Can Blockchain Revolutionize Tax Administration? (reviewed by Sloan Speck (Colorado; Google Scholar)) here) as part of the San Diego Tax Law Speaker Series. If you would like to attend, please register here.

Wednesday, January 26: Michael Devereux (Oxford) will present Pillar 2: Rule Order, Incentives, and Tax Competition (with John Vella (Oxford) & Heydon Wardell-Burrus (Oxford)) and Business Location Decisions With A Global Minimum Tax (with Francois Bares (Wisconsin) & Irem Guceri (Oxford; Google Scholar) as part of the Toronto James Hausman Tax Law and Policy Workshop. If you would like to attend, please contact Robert Lines.

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Maynard: Biden’s Gambit: Advancing Racial Equity While Relying On A Race-Neutral Tax Code

Goldburn P. Maynard Jr. (Indiana University, Kelley School of Business; Google Scholar), Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code, 131 Yale L.J. Forum 656 (2022):

The American Rescue Plan Act was both a major infusion of economic aid to low-income and middle-class Americans and an opportunity for the Biden Administration to keep its promise to promote racial equity. This Essay analyzes ARPA’s major provisions to determine their potential impact on racial equity. It argues that the Biden Administration should do more to tackle racial wealth inequality and the structural issues in the tax code that allow those at the top of the income distribution to benefit disproportionately from tax subsidies. It also underscores the larger challenge of achieving racial equity in the face of courts, particularly conservative judges, that treat race-based policies designed to counteract racial inequities as discriminatory.

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Strategic Surrogates Or Sad Sinners: U.S. Taxation Of Bartering In Digital Services

Mark J. Cowan (Boise State), Joshua Cutler (Boise State) & Ryan J. Baxter (Boise State; Google Scholar), Strategic Surrogates or Sad Sinners: U.S. Taxation of Bartering in Digital Services,  58 Am. Bus. L.J. ___ (2021):

The COVID-19 pandemic caused both a surge in technology use and a deterioration in government finances. At the same time, big tech companies are under scrutiny by lawmakers for tax avoidance, antitrust issues, and other concerns. These realities call for governments to reassess tax policy towards tech companies and for tech companies to reassess legal strategy towards taxes. State and federal governments’ tax bases are eroding because of the non-cash, barter nature of modern transactions. When a taxpayer uses “free” digital services like email, social media, or search engines, she pays via access to her personal data or attention. From a legal and policy standpoint, these barter transactions should be taxed just as if cash had changed hands, but because it is not practicable to identify, value, and tax the data and time of each user, they have escaped taxation, giving many tech companies an unintended tax advantage. 

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Kofler Presents The Shielding Effect of European Tax Directives Today At The OMG Transatlantic Tax Talks

Georg Kofler (Vienna; Google Scholar) presents The Shielding Effect of European Tax Directives today as part of the OMG Transatlantic Tax Talks Series (OMG = Oxford-Michigan-MIT-Munich-Georgetown):

Kaye: A Comparative Look At The Low-Income Housing Tax Credit And Opportunity Zones

Tracy A. Kaye (Seton Hall), Ogden Commons Case Study: A Comparative Look at the Low-Income Housing Tax Credit and Opportunity Zone Incentive Tax Programs, 48 Fordham Urb. L.J. 1067 (2021):

The Opportunity Zone (OZ) tax incentive to invest in economically distressed areas across the United States was introduced in the 2017 Tax Cuts and Jobs Act. This Article examines the Ogden Commons project, a mixed-use development in Chicago’s North Lawndale neighborhood, as a case study for OZ investments. Ogden Commons represents an appropriate implementation of the OZ incentive, but its successes also demonstrate the program’s shortfalls. For example, unlike other federal economic development programs such as the Low-Income Housing Tax Credit (LIHTC), OZ investors have few restrictions with regards to the projects they invest in. This much touted great flexibility for the OZ investments comes at the expense of little oversight.

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Textualism Without Tax Shelters

Jacob D. Nielsen (J.D. & LL.M. (Tax) 2021, Boston University), Note, Textualism without Tax Shelters: A Proposal for Integrating Judicial Anti-Abuse Doctrines with Textualism, 101 B.U. L. Rev. 1471 (2021):

The line between legitimate tax planning and abusive tax positions, while clear in many instances, produces a significant amount of controversy. Judicial scrutiny of close cases has led to the development of a body of loosely related anti-abuse doctrines designed to separate the wheat from the chaff. However, textualist judges have increasingly rejected or limited the use of anti-abuse doctrines out of a concern that such doctrines undermine taxpayer reliance on the law. Critics contend that by rejecting anti-abuse doctrines, these textualist judges legitimate abusive tax shelters and deprive the judiciary of essential tools for curbing abuse. This Note responds to textualists and their critics alike by arguing that textualism is not incompatible with judicial anti-abuse doctrines. After surveying major landmarks in the historical development of the legal system’s treatment of tax abuse and considering the Sixth Circuit’s approach to the issue, this Note develops an account of judicial anti-abuse doctrines as textually sensitive aids to statutory interpretation.

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Fox Presents The Psychology Of Taxing Capital Income Today At Toronto

Ed Fox (Michigan; Google Scholar) presents The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule (with Zachary Liscow (Yale; Google Scholar)) (reviewed by David Elkins (Netanya) here) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

How to tax capital income is a critical issue today. The realization rule—requiring that property usually must be sold before gains are taxed—is central to taxing capital income, but often decreases the efficiency, equity, and simplicity of the tax system. Estimates suggest that the realization rule costs the government over $2 trillion over 10 years. Given these problems, it is unclear why the rule exists for assets that are easy to value and sell. Scholars have long speculated about the role of the public’s views here, but little is known empirically about them. We conduct the first survey experiment to understand the psychology of the realization rule, which has broad implications for the taxation of capital income.

We have three main findings. First, respondents strongly prefer to wait to tax gains on stocks until sale: 75% to 25%. This pattern persists across a variety of other assets and policy framings: indeed, nearly half of those without stock prefer raising everyone’s taxes (including their own) to taxing unsold stock gains. But the flip side is that there is surprisingly strong support for taxing gains on assets at sale or transfer, including at death, in areas where current law never taxes those gains.

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Wage Enslavement: How The Tax System Holds Back Historically Disadvantaged Groups Of Americans

Goldburn Maynard Jr. (Indiana University, Kelley School of Business; Google Scholar) & David Gamage (Indiana University, Maurer School of Law; Google Scholar), Wage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans, 110 Ky. L.J. __ (2022):

Despite the importance placed on equality of opportunity within United States political culture, the existing tax system inhibits historically disadvantaged groups from building wealth or catching up with historically more privileged groups. This effectively then traps many members of historically disadvantaged groups into a continued cycle of dependence on tax-disfavored wage and salary income, a phenomenon that we metaphorically label as “wage enslavement.” This Article explains this phenomenon and then calls for reform.

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Layser: Financing Affordable Housing Through Opportunity Funds

Michelle D. Layser (Illinois; Google Scholar), Financing Affordable Housing Through Opportunity Funds, 19 Pitt. Tax Rev. __ (2022):

This Essay considers how the Opportunity Zones law could be amended to promote affordable housing development, and it evaluates whether policymakers should adopt such amendments. This Essay identifies several legal and practical barriers to the use of Opportunity Funds to finance affordable housing development, including through twinning with the LIHTC. These barriers include: substantial improvement rules that present barriers to affordable housing rehabilitation; basis rules that present barriers to new construction deals with low debt-to-equity ratios; strict timing rules that may not align with the realities of affordable housing construction; limits on nonqualified financial property holdings that may foreclose common affordable housing development structures; and differences in the identity and motivations of the investors who typically participate in Opportunity Zones deals versus LIHTC deals.

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Woolhandler: Public Rights And Taxation

Following up on my previous post on Nicholas R. Parrillo (Yale), A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021):  Ann Woolhandler (Virginia; Google Scholar), Public Rights and Taxation: A Brief Response to Professor Parrillo:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared [Nondelegation at the Founding], particularly arguing that Congress itself addressed the important issues as to the 1798 tax. 

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Lesson From The Tax Court: The Tacit Consent Rule

Every marriage requires trust.  In my own marriage my DW trusts me to handle our finances.  I’m sort of the CFO of our marriage.  As part of my duties I prepare our taxes.  I try to explain them to my DW before I file, but more often than not she just waves me away with a smile, saying “I trust you.”  Back in the day when we filed paper returns I at least was able to ensure she signed the returns.  But now that we file electronically, I just make a few clicks and, boom!, it’s filed.

I have sometimes questioned whether we are really filing a joint return when it’s only me doing all the clicking for the electronic submission.  When one files electronically there is nothing analogous to an actual signature to show that both spouses have even seen, much less approved, of what is submitted.  You just need to create two 5-digit numbers, one for each spouse. Tax return preparers at least get to secure a wet signature on Form 8879 to show both spouses consented to the return preparer submitting the electronic return.  I got nothing like that.  Just a smile and a “I trust you.”

Today’s lesson answers my question.  In Om P. Soni and Anjali Soni v. Commissioner, T.C. Memo. 2021-137 (Dec. 1, 2021) (Judge Copeland), we learn that a spouse can tacitly consent to a joint return even when the spouse does not actually sign the return and even when someone else forges the spouse’s signature!  Whether there is tacit consent depends on the facts and circumstances of the filing.  And perhaps the most important factor is a history of one spouse’s trust in the other.  Details below the fold.

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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 joining the list at #5 and some reshuffling of the order within the Top 5:

1. [299 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
2. [194 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
3. [193 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
4. [187 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)
5. [123 Downloads]  2020 Developments in Connecticut Estate and Probate Law, by Jeffrey Cooper (Quinnipiac; Google Scholar), John Ivimey (Reid & Riege, Hartford) & Katherine Mulry (Reid & Riege, Hartford)

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Infanti's Tax And Time: On The Use And Misuse Of Legal Imagination

This week David Elkins (Netanya, visiting NYU 2021-2022; Google Scholar) reviews a new paper by Anthony C. Infanti (Pittsburgh; Google Scholar), Tax and Time: On the Use and Misuse of Legal Imagination (NYU Press 2022). 

Time is one of the more perplexing phenomena of the universe. Astrophysicists distinguish between what they call “real time” (time as we experience it, as a series of continuous moments moving from the past to the future) and “imaginary time” (time as viewed from outside the time-space continuum, as a unitary whole with past, present, and future existing simultaneously). However, lest we misinterpret the terms, real time is not more real than imaginary time, and imaginary time is not more imaginary than real time. The terms “real” and “imaginary” simply refer to the real and imaginary axes in Cartesian complex number coordinates. In fact, in ordinary language, it is probably more accurate to describe imaginary time as “real” (an objective portrayal of the universe) and real time as “imaginary” (our psychological perception of the flow of time). One example of the complexities that arise in this field is the conundrum of the arrow of time: Why do we remember the past, but not the future? Why do we experience time as always flowing in one direction? The arrow of time has intrigued philosophers also. Why is the knowledge that I am to experience future pleasure preferable to the knowledge that I experienced past pleasure? Why is knowledge that I am to experience future pain more disconcerting than the knowledge than I experienced pain in the past?

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Next Week’s Tax Workshops

Wednesday, January 19: Ed Fox (Michigan; Google Scholar) will present The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule (with Zachary Liscow (Yale; Google Scholar)) as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Robert Lines. 

Thursday, January 20: Georg Kofler (Vienna; Google Scholar) will present The Shielding Effect of EU Secondary Law as part of the OMG Transatlantic Tax Talks. This event does not require registration.

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Realization's Vexations: Taxing Cryptocurrency Hard Forks

Arvind Sabu (Capital), Realization's Vexations: Taxing Cryptocurrency Hard Forks, 61 Jurimetrics J. 379 (2021):

A cryptocurrency hard fork seems to increase a holder’s fortunes—those who held Bitcoin, for example, nominally received an equivalent amount of Bitcoin Cash as a result of a famous hard fork. But this Article argues they should not be taxed based on the time of the fork, nor would they then be taxed under existing authorities.

Cryptocurrency hard forks represent innovative experimentation with changes to a cryptocurrency’s protocol in the rich modality of commons-based peer production—the modality responsible for Wikipedia and Linux. The tax system should not stifle this ex¬perimentation and the growth of the cryptocurrency commons by taxing hard forks based on when they occur. Relatedly, the indeterminate value of newly forked cryptocurrencies weighs against taxing hard forks based on when they occur.

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Sarkar: Tax Law's Migration

Shayak Sarkar (UC-Davis), Tax Law's Migration, 62 BC L. Rev. 2209 (2021):

Tax law has long left poor foreigners in precarity. Despite the Supreme Court striking down nineteenth-century state laws taxing migrants upon entry, the tax system has nonetheless determined who deserved a place, and what sort of place, within our borders. That tradition continues when the tax system’s emergency relief deprives otherwise needy noncitizens, giving migrants a lesser place.

This Article sheds light on this phenomenon—“tax law’s migration”—engaging two underappreciated connections between immigration and tax law.

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Estate And Gift Tax Valuation Of Cannabis Business Interests

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

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

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De Cogan Presents The Unaccountability Of Tax Devolution: A Case Study Of Business Rates Today At Toronto

Dominic De Cogan (Cambridge) presents The Unaccountability of Tax Devolution: A Case Study of Business Rates (with Penelope Tuck (University of Birmingham; Google Scholar)) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

This article was published in [2022] Public Law 38. It examines the accountability arguments for business rates devolution and shows them to be weak. They are undermined by the economic incoherence of the tax, the complexity of devolved powers and a lack of transparency around the use of powers. These problems resonate with a widely held belief that business rates ought to be repealed and replaced with a more carefully designed tax, especially in response to the pressures placed on the system by COVID-19. We are not hostile to these ideas but doubt the likelihood of rapid implementation, and therefore focus on the existing system, paying special regard to the COVID reliefs of 2020 and 2021. We suggest incremental improvements that could reinforce the accountability justifications for devolution; these might be useful even in the event that radical reforms are enacted.

A key justification for tax devolution is that it enhances sub-central accountability.  The meaning of ‘accountability’ in this context is not always clear, but it seems to embody two linked claims. 

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Burke: Transfers Of Zero-Basis Intangibles To A Partnership

Karen C. Burke (Florida), Transfers of Zero-Basis Intangibles to a Partnership, 174 Tax Notes Fed. 25 (Jan. 3, 2022):

In this report, Burke examines the problem of contributed zero-basis intangibles in light of the IRS’s inadvertent disclosure of a transaction structured by Bristol-Myers Squibb to shift billions of dollars of built-in gain to a related foreign partner.

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Appleby: Subnational Digital Services Taxation

Andrew D. Appleby (Stetson; Google Scholar), Subnational Digital Services Taxation, 81 Md. L. Rev. 1 (2021):

Existing tax regimes fail to tax digital services appropriately. Digital services based on extracting and monetizing user data—most notably digital advertising—are particularly problematic because tax regimes do not adequately account for the enormous value derived from user data.

Internationally, taxing jurisdictions have recognized these failures and commenced a controversial push toward new digital services taxes or DSTs. Subnational taxing jurisdictions in the United States face the same issues and are searching for solutions.

This Article begins by examining the motivations and justifications for digital service taxation at both the international and subnational levels. These justifications center on antiquated tax regimes that do not sufficiently capture profit from new business models, particularly business models that rely on valuable data extracted from users in the taxing jurisdiction.

 

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Appleby: Designing The Tax Supermajority Requirement

Andrew D. Appleby (Stetson; Google Scholar), Designing the Tax Supermajority Requirement, 71 Syracuse L. Rev. 959 (2021):

States are rekindling the trend of broad constitutional amendments that require supermajority approval to create or increase taxes. This trend may inadvertently harm states’ already precarious fiscal footing, particularly with several new imminent expenditure demands. States can minimize negative economic consequences, however, through proper supermajority requirement design.

This Article makes three contributions. First, it examines broad constitutional tax supermajority requirements’ history, asserted justifications, and effectiveness. This examination concludes that the motivations underlying the first and second supermajority waves differ importantly from those underlying the possible third wave. Recognizing this novel motivation—signaling low-tax competitive advantage—allows this Article to present optimal supermajority provision design principles.

Second, this Article investigates several new sources that can generate immense tax revenue for states, but that will likely be obstructed by tax supermajority provisions if not designed properly. This Article also identifies several expenditure demands that are unlikely to be satisfied without new or increased taxes.

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Tax Policy Center Hosts Virtual Event Today On Taxing Business Income: Evidence From The Survey Of Consumer Finances

The Tax Policy Center hosts a virtual event on Taxing Business Income: Evidence from the Survey of Consumer Finances today at 12:30 PM ET (registration):

Legislated changes in business income taxes over the past 20 years have led to a dramatic reduction in the federal income tax base and revenues. As a result, a significant share of income is never subject to tax. For example, more than half of non-corporate business income in the National Income and Product Accounts does not show up on tax returns.

On January 11, the Urban-Brookings Tax Policy Center will host an event on this divergence between economic and taxable income and its implications for tax policy. Results from new research using the Survey of Consumer Finances will be presented with an eye towards understanding which forms of income do not show up on tax forms, where in the income distribution that divergence is occurring, and the revenue implications of broadening the business income tax base.

William G. Gale, Swati Joshi, Christopher Pulliam & John Sabelhaus, Estimating Income Tax Liabilities With Data From the Survey of Consumer Finances:

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Dooling & Hickman: A Study To Evaluate OIRA Review Of Tax Regulations

Bridget C.E. Dooling (George Washington Regulatory Studies Center; Google Scholar) & Kristin E. Hickman (Minnesota; Google Scholar), A Study To Evaluate OIRA Review of Treasury Regulations:

For most federal agencies, centralized review by Office of Information and Regulatory Affairs (OIRA) and regulatory impact analysis have been a routine part of the regulatory process for more than 40 years. Not so in the tax context. When OIRA was in its infancy, OIRA Administrator Christopher DeMuth and Treasury Department General Counsel Peter Wallison signed a memorandum of agreement that exempted most Treasury and IRS tax regulations from OIRA review. More than a decade later, that memorandum of agreement was ratified by OIRA Administrator Sally Katzen and Treasury Department General Counsel Jean Hanson. Katzen has indicated since then that her understanding was that the exempted rules were minor and technical rather than sweeping and substantive. As a result of these agreements, however, very few Treasury regulations were ever submitted for OIRA review.

That changed in April 2018, when OIRA Administrator Neomi Rao and Treasury Department General Counsel Brent McIntosh signed a new memorandum of agreement (MOA) that would pull more Treasury and IRS tax regulations in for OIRA review. ...

Now that the MOA is almost four years old, ... [we] investigate how OIRA review has influenced the content of Treasury regulations implementing and interpreting the tax laws. ...

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The 10 Most Downloaded Tax Articles Of 2021

1. 2,352 Downloads:  Lily Batchelder (NYU) & David Kamin (NYU), Taxing the Rich: Issues and Options
2. 2,275 Downloads:  Edward McCaffery (USC), The Death of the Income Tax (or, the Rise of America's Universal Wage Tax)
3. 1,491 Downloads:  Hugh Ault (Boston College), Some Reflections on the OECD and the Sources of International Tax Principles
4. 996 Downloads:  Kimberly Clausing (UCLA), Emmanuel Saez (UC-Berkeley) & Gabriel Zucman (UC-Berkeley), Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals
5. 928 Downloads:  Michael Devereux (Oxford) & John Vella (Oxford), Are We Heading Towards a Corporate Tax System Fit for the 21st Century? (2014)
6. 897 Downloads:  Kimberly Clausing (UCLA), Profit Shifting Before and After the Tax Cuts and Jobs Act
7. 871 Downloads:  Michelle Hanlon (MIT) & Shane Heitzman (Rochester), A Review of Tax Research
8. 787 Downloads:  Steven Dean (Brooklyn) & Attiya Waris (Nairobi), Ten Truths About Tax Havens: Inclusion and the ‘Liberia’ Problem

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AALS Hosts Three Four Virtual Tax Events Today

11:00 am ET:  The Promise and Pitfalls of the Global Tax Deal:

In October 2021, 136 countries struck a ground-breaking tax deal for the digital age. This panel will discuss the proposed two-pillar tax system from the perspective of the United States, the EU, and other regions, what these two pillars do, the likely approaches in many countries, practical concerns, and the impact on existing measures, such as DSTs, tax treaties, 15% global minimum tax, GILTI, BEAT, Subpart F, and foreign tax credit rules.

• Young Ran (Christine) Kim (Utah) (moderator)
• Steven Dean (Brooklyn)
• Omri Marian (UC-Irvine)
• Susan Morse (Texas)
• Diane Ring (Boston College)

11:00 am ET:  Nonprofit and Philanthropy Law:

Nonprofit organizations engage in discriminatory practices without losing their tax-exempt status. However, tax law may be used as a powerful tool to eradicate institutional discrimination among nonprofit organizations. This panel will explore nonprofit organizations and discriminatory practices, almost forty years after the landmark Bob Jones University v. U.S. case. In this decision, the Supreme Court held that the IRS may deny tax-exempt status to institutions whose policies violate “fundamental public policy,” even if those policies are allegedly based on religious beliefs. The panel will address the legacy of this decision today in educational, religious, and broader settings.

• Khrista McCarden (Tulane) (moderator)
• Samuel Brunson (Loyola-Chicago)
• JoAnne Epps (Temple)
• Lloyd Hitoshi Mayer (Notre Dame)

2:00 pm ET:  Social Networking Session:

Take a break from formal programming and join your colleagues from the Section on Taxation for informal conversation.

• Adam Thimmesch (Nebraska) (Incoming Chair)
• Kathleen Delaney Thomas (Chair)

4:45 pm ET:  New Voices in Taxation:

This program will feature works in progress by three emerging tax scholars, each of whom will be paired with a senior tax scholar discussant.

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The Top Five New Tax Papers

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

1. [280 Downloads]  Principles-based Tax Drafting and Friends. On Rules, Standards, Fictions and Legal Principles, by Hans Gribnau (Tilburg) & Sonja Dusarduijn (Tilburg)
2. [188 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
3. [183 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)
4. [166 Downloads]  The Proposal for a Minimum Global Tax: Critical Reflections, by Leopoldo Parada (Leeds; Google Scholar)
5. [88 Downloads]  Whose Child Is This? Improving Child-Claiming Rules in Safety Net Programs, by Jacob Goldin (Stanford; Google Scholar) & Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar)

Determining Patent Worthlessness For Tax Purposes

Christina Sumer, Determining Patent Worthlessness for Tax Purposes, 24 Marq. Intell. Prop. L. Rev. 93 (2020):

Introduction
Patent valuation is a complex, occasionally confusing concept that has become somewhat of a gray area in intellectual property. Patent value is “the economic benefit that the patent can bestow upon its owner.” It involves determining a patent’s monetary value to the patent’s owner, which can prove difficult based on the fact that patents are inherently unique. Generally, the more significance a patent has to society, the higher its value. There are currently seven different valuation methods used for valuing intellectual property. They include the following: the twenty-five (25) Percent Rule, Industry Standards, Ranking, Surrogate Measures, Disaggregation Methods, the Monte Carlo Method, and Option Methods. While these are all widely used methods, none of them are definitive, and they are continually being updated. In fact, the Federal Circuit recently held that the twenty-five (25) Percent Rule is flawed, and it would no longer be accepting evidence using that method.

Conclusion
Though there have not been many worthlessness or obsolescence cases regarding patents in the last eighty years or so, it is still important to look at this area of case law because of the different reasoning the courts have used to reach decisions. The cases on patent obsolescence from the paper patent era are still considered good law, so a determination needs to be made if future patent obsolescence cases should follow their logic. This comment’s assessment of that era’s reasoning concludes future cases should not. The reasoning of those cases was too broad and had no uniform justification on how decisions were reached.

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Zelinsky's The Proposed Regs On ESG Investing

This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by Edward A. Zelinsky (Cardozo), Comments to the Department of Labor Proposed ERISA Regulations, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” amending and restating 29 CFR §2550.404a-1.

The Employee Retirement Income Security Act of 1974 (ERISA) protects retirement plan participants and beneficiaries in a variety of ways. Under ERISA, pension plans must meet certain standards with respect to (i) participation, identifying who may participate, (ii) vesting, establishing how long those individuals must work to receive retirement funds, (iii) funding, determining the minimum amount of funds that must be set aside to pay future plan participants, (iv) management, requiring fund managers to adhere to a fiduciary standards, handling funds prudently and in the best interests of plan participants, and (v) disclosure, requiring plan managers to inform participants of their rights and the financial status of the plan. The Department of the Treasury and the Internal Revenue Service oversee plan participation, vesting, and funding. Participants in qualifying plans enjoy tax deduction and deferral benefits. They also retain the right to sue to recover earned benefits. The Department of Labor regulates fiduciary standards and requirements for reporting and disclosure of financial information.

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Next Week’s Tax Workshop

Wednesday, January 12: Dominic De Cogan (Cambridge) will present The Unaccountability of Tax Devolution: A Case Study of Business Rates as part of the Toronto James Hausman Tax Law and Policy Workshop Series. If you would like to attend, please contact Robert Lines.

For individual tax workshop posts, see here.

Pepperdine Symposium: Wealth And Inequality

Symposium, Wealth and Inequality, 48 Pepp. L. Rev. 875-1129 (2021):

• Ari Glogower (Ohio State), Comparing Capital Income and Wealth Taxes, 48 Pepp. L. Rev. 875 (2021)
• Richard Winchester (Seton Hall), A GILTI Fix for an Employment Tax Glitch, 48 Pepp. L. Rev. 915 (2021)
• Bobby L. Dexter (Chapman), Inequality, and the Berlin Walls of the Mind, 48 Pepp. L. Rev. 949 (2021)
• Karen B. Brown (George Washington), Tax Incentives and Sub-Saharan Africa, 48 Pepp. L. Rev. 995 (2021)
• Phyllis Taite (Oklahoma City), May the Odds Be Ever in Your Favor: How the Tax Cuts and Jobs Act Fortified the Great Wealth Divide, 48 Pepp. L. Rev. 1023 (2021)

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Building Better Conservation Easements For America The Beautiful

K. King Burnett (Uniform Law Commission), John D. Leshy (UC-Hastings) &  Nancy A. McLaughlin (Utah; Google Scholar), Building Better Conservation Easements for America the Beautiful (reviewed by Tracey Roberts (Cumberland; Google Scholar) here):

In January 2021, the Biden Administration endorsed the goal of protecting 30% of the nation’s lands and waters by 2030 to conserve biodiversity and help curb greenhouse gas emissions. The Administration’s initial report on this “America the Beautiful” initiative, issued in May, indicates that federally-deductible conservation easements are likely to play an important role in its implementation. This essay addresses whether and how such easements should be counted in this process.

This matter is of great importance. Donations of conservation easements, by which landowners receive generous federal tax deductions if they restrict the use of their properties in perpetuity in the interest of conservation, cost American taxpayers billions of dollars annually in foregone revenue. In addition, growing reports of abuse and other developments raise serious questions about the effectiveness of deductible easements in achieving durable conservation outcomes.

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How Soon Is Now: Estate Of Moore & The Unraveling Of Deathbed Estate Planning

Beckett Cantley (Northeastern) & Geoffrey Dietrich (Cantley Dietrich), How Soon Is Now: Estate of Moore & The Unraveling of Deathbed Estate Planning, 34 Quinnipiac Prob. L.J. 141 (2021):

On April 7, 2020 the U.S. Tax Court ruled in Estate of Moore v. Commissioner, T.C. Memo. 2020-40, that certain deathbed transfers should be includible in the decedent’s estate for United States Federal Estate Tax (“estate tax”) purposes. The court applied Internal Revenue Code (“I.R.C.”) § 2036 to the transfers due to the decedent’s continued interests in the transferred property. The Tax Court stated that I.R.C. § 2036 creates “a general rule that brings back all property that a decedent transfers before he dies, subject to two exceptions.” The first exception is for bona fide sales for full and adequate consideration. The second exception is for “any property that [the decedent] transferred in which he did not keep a right to possession, enjoyment, or rights to the issue of the transferred property.” The Tax Court stated that the first exception depends on the transferor’s motivations, and that the decedent’s actions made it clear there was no bona fide sale. As a result, the Tax Court determined that I.R.C. § 2036(a)(1) applied to the transfer.

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Smith: Exploiting the Charitable Contribution Deduction's Hypersalience

Eric Smith (Weber State), Exploiting the Charitable Contribution Deduction's Hypersalience, 2020 Utah L. Rev. 419:

Hypersalience describes the cognitive error that occurs when taxpayers are highly aware of a tax provision generally, but fail to correctly perceive its associated limitations. The charitable contribution deduction provides a strong example of hypersalience as taxpayers have general awareness that tax benefit follows charitable giving, but often fail to understand the deduction’s limits—most notably the standard deduction’s preclusion to any direct tax benefit for charitable giving. As cognitive error drives inaccurate perception of the tax law, the question arises: what, if anything, should the government do to correct taxpayer understanding?

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Doran: The Great American Retirement Fraud

Michael Doran (Virginia; Google Scholar), The Great American Retirement Fraud:

Over the past twenty-five years, Congress has enacted several major reforms for employer-sponsored retirement plans and individual retirement accounts (“IRAs”), always with large bipartisan, bicameral majorities. In each case, legislators have claimed that the reforms would improve retirement security for millions of Americans, especially rank-and-file workers. But the supposed interest in helping lower-income and middle-income earners has been a stalking horse for the real objective of expanding the tax subsidies available to higher-income earners.

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Kaplan: When the Stepped-Up Basis Of Inherited Property Is No More

Richard L. Kaplan (Illinois; Google Scholar), When the Stepped-Up Basis of Inherited Property Is No More, 47 ACTEC L.J. 77 (2021):

Written for a symposium on how Trusts & Estates might change in the future, this article considers the implications of repealing the “step-up in basis” rule for inherited property, as President Biden proposed. The article begins by explaining how this century-old tax rule affects gratuitous transfers and then reviews previous repeal efforts before it examines the impact of such repeal on family tax planning, retirement account funding, and charitable donations.

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Avi-Yonah: First Impressions Of the International Tax Provisions Of BBB: A Reasonable Compromise

Reuven Avi-Yonah (Michigan; Google Scholar), First Impressions of the International Tax Provisions of BBB: A Reasonable Compromise:

The recently unveiled international tax provisions of the Build Back Better Act (BBB) represent a reasonable compromise. They are consistent with the OECD’s Pillar Two statement, and they represent a significant move toward the implementation of the single tax principle (STP). In what follows, we will discuss the proposed changes and how they fit in with the new international tax regime.

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Hellerstein & Appleby: Does The Supreme Court’s Decision In Wayfair Apply Retroactively?

Walter Hellerstein (Georgia) & Andrew D. Appleby (Stetson; Google Scholar), Does the Supreme Court’s Decision in Wayfair Apply Retroactively?, 102 Tax Notes St.  715 (2021):

A recent decision of the Oregon Tax Court suggests that it may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical. Accordingly, after providing an overview of the case law governing retroactive application of Supreme Court state tax decisions repudiating preexisting constitutional doctrine, we examine the Oregon Tax Court’s opinion in Global Hookah Distributors Inc. v. Department of Revenue, which addressed the question whether Wayfair applied retroactively to the state’s tobacco products tax.

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Taxes, Theft, And Indian Tribes: Seeking An Equitable Solution To State Taxation Of Indian Country Commerce

Adam Crepelle (Southern), Taxes, Theft, and Indian Tribes: Seeking an Equitable Solution to State Taxation of Indian Country Commerce, 122 W. Va. L. Rev. 999 (2020):

Introduction
Though often overlooked, Indian tribes are the third sovereign recognized in the United States' constitutional order.' A long and sordid history of colonization resulted in tribes relinquishing much of their land, but only some of their aboriginal sovereignty. Indeed, the settled principle is that tribes possess all inherent powers that have not been expressly or necessarily abnegated by their incorporation into the United States. The Supreme Court has found three limitations on tribes: tribes cannot alienate their land, tribes cannot prosecute non-Indians, and tribes cannot engage in foreign relations without federal approval. Accordingly, tribal sovereignty is akin to state sovereignty in that states have those powers that were not surrendered to the federal government in the Constitution' in contrast to the powers of municipal governments under Dillon's Rule.

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Livingston: Tax And Culture

Michael A. Livingston (Rutgers), Tax and Culture: Convergence, Divergence, and the Future of Tax Law (Cambridge University Press 2020):

Tax scholars traditionally emphasize economics and assume that all tax systems can be evaluated in more or less the same way. By applying the insights of anthropology, sociology, and other social sciences, Michael A. Livingston demonstrates that tax systems frequently pursue different values and that the convergence of tax systems is frequently overstated. In Tax and Culture, he applies these insights to specific countries, such as China and India, and specific tax issues, including progressivity, tax avoidance, and the emerging area of environmental taxation. Livingston concludes that the concept of a global tax culture is, in many cases, merely a reflection of Western hegemony, and is unlikely to survive the changes implicit in the rise of non-Western nations and cultures.

The book Tax and Culture: Convergence, Divergence, and the Future of Tax Law, by Michael Livingston, makes an exceptionally valuable contribution to the field of critical tax scholarship, and to tax legal scholarship more broadly. — Ann Mumford, British Tax Review

Haneman: Wealth, Privilege, Power, And Opportunity

Victoria J. Haneman (Creighton; Google Scholar), Wealth, Privilege, Power, and Opportunity (JOTWELL) (reviewing Allison Anna Tait (Richmond; Google Scholar), Inheriting Privilege, 106 Minn. L. Rev. __ (2022)):

Over one’s lifetime, advantage processes have a cumulative and potentially significant impact on inequality.  The notion of cumulative advantage, or behavior processes whereby wealth continues to fall into the hands of individuals based upon how much they have already accumulated, is a concept to which many labels are applied: preferential attachment; “the rich get richer”; the Matthew effect. Most law school courses on trusts and estates consider (to some extent) the privilege, power, and opportunity that flows from economic wealth. Conversely, inherited social and cultural capital create advantage processes that are arguably no less significant, driving behaviors that produce tacit economic benefits—the parent who pays for extra tutoring so that a child may outperform peers on an entrance exam; the professional able to develop an instant sense of rapport and connection with other successful professionals; the job candidate who comports herself with high cultural knowledge (au courant but appropriate attire, elegant table manners, knowledge of fine arts, broad functional vocabulary). Although the intergenerational impact of inherited cultural capital is fascinating and relevant as an advantage process, the implications have been largely overlooked by legal scholars contemplating inheritance frameworks. Inheriting Privilege by Allison Anna Tait considers the family trust as a mechanism for intergenerational transfer of privileged social standing and cultural hierarchies. ...

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The Top Five New Tax Papers

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

1. [180 Downloads]  Reducing Administrative Burdens to Protect Taxpayer Rights, by Leslie Book (Villanova; Google Scholar), Keith Fogg (Harvard) & Nina Olson (Center for Taxpayer Rights)
2. [169 Downloads]  Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, by Roger Colinvaux (Catholic)
3. [129 Downloads]  Because Not Always B Comes After A: Critical Reflections on the New Article 12B of the UN Model Tax Convention on Automated Digital Services, by Andrés Báez (Universidad Carlos III de Madrid)
4. [124 Downloads]  The Tax Materiality Principle, by Bronte Klein & Eelco van der Enden (Global Reporting Initiative)
5. [84 Downloads]  Whose Child Is This? Improving Child-Claiming Rules in Safety Net Programs, by Jacob Goldin (Stanford; Google Scholar) & Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar)

Blue J Predicts: Worker Classification In The Gig Economy

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Kathrin Gardhouse (Legal Research Associate, Blue J Legal), Predicting Worker Classification in the Gig Economy, 173 Tax Notes Fed. 1733 (Dec. 20, 2021):

In this article, Alarie and Gardhouse examine the classification of workers in the gig economy and use machine-learning models to evaluate the legal factors that determine their categorization as employees or independent contractors for federal income tax purposes.

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Save The Date: 25th Critical Tax Conference At Villanova

From Joy Sabino Mullane (Villanova):

I am excited to announce that Villanova Charles Widger School of Law and the Villanova Graduate Tax Program will host the 25th annual Critical Tax Conference in 2022. We are planning to meet in person on our campus, with a dinner the evening of Thursday March 31, a full day of panels on Friday April 1, and a morning session on Saturday April 2.

Les Book, Christine Speidel, and I look forward to welcoming you to Villanova and to another great weekend of tax scholarship. A formal call for papers, along with other pertinent information, will follow at the beginning of the new year. In the meantime, save the date, plan to travel to Philadelphia, and get ready for what should be a terrific weekend.

Prior Critical Tax Theory Conferences:

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Hickman Reviews The Surprising Significance Of De Minimis Tax Rules By Osofsky & Thomas

Kristin Hickman (Minnesota; Google Scholar), Perhaps We Should Sweat the Small Stuff (JOTWELL) (reviewing Leigh Osofsky (North Carolina; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), The Surprising Significance of De Minimis Tax Rules, 78 Wash & Lee L. Rev. 773 (2021)):

“Don’t sweat the small stuff” was one of my father’s favorite sayings. It’s the thought that has always come to my mind whenever thinking about, and teaching, de minimis rules in the tax code. De minimis rules keep the IRS from seeming petty, for example by allowing an employer that provides free bagels in the break room from having to report the bagels as income to its employees. De minimis rules also allow taxpayers to avoid complexity and hassle when the dollar amounts at stake are small, for example by permitting taxpayers to immediately deduct many small capital expenditures, rather than having to amortize or depreciate them over several years. In short, I have always thought of de minimis rules as making a hugely complicated tax system just a little easier to navigate, and perhaps just a little kinder. At worst, de minimis rules have always seemed fairly harmless — “the equivalent of rounding errors in the design of the tax law.” Reading The Surprising Significance of De Minimis Tax Rules by Leigh Osofsky and Kathleen DeLaney Thomas has forced me to rethink these long-held intuitions. ...

The Surprising Significance of De Minimis Tax Rules carefully examines, and calls into question, a practice that I suspect most tax professors and policymakers take for granted. Osofsky and Thomas do not argue that we should get rid of all de minimis tax rules. But Osofsky and Thomas demonstrate very effectively that we need to pay more attention to de minimis tax rules and not think of them merely as “the small stuff.”

McCaffery: Tax Reform For Campaign Finance Reform

Edward J. McCaffery (USC; Google Scholar), A Better Hope for Campaign Finance Reform, 52 Ariz. St. L.J. 445 (2020) (reviewed by Mirit Eyal-Cohen (Alabama) here):

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

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