Flanagan: Reframing Taxigration

Jacqueline Lainez Flanagan (University of the District of Columbia), Reframing Taxigration:

Tax compliance by undocumented immigrant workers could and should be the architectural centerpiece of immigration reform. Analyzing this premise using broad economic frameworks and examining corresponding mechanisms in U.S. tax and immigration systems, this article seeks to reframe “taxigration” to signify tax filing as a threshold condition to legalization.

Continue reading

Call For Papers: Indiana Symposium On Social Equality in the Sharing Economy

Call for Participation: 2020 Social Equality in the Sharing Economy Symposium:

The “sharing economy,” also known as the “gig” or “on-demand” economy, is transforming the way people work, eat, commute, and travel by seamlessly connecting suppliers and consumers via app-based technology platforms.  It provides flexible income earning opportunities for one side and convenience and low prices for the other. However, it also creates a dizzying array of policy problems for communities of all sizes—from tax evasion and pollution to price discrimination, worker precarity, and violent protests.  The Indiana Journal of Law and Social Equality (IJLSE), in collaboration with Indiana University’s Kelley School of Business and the Ostrom Workshop, is hosting a symposium on February 13th and 14th at the Maurer School of Law in Bloomington, Indiana to offer and debate solutions to these complex and fast-moving set of challenges.

Designed to stimulate interdisciplinary research and collaboration, as well as to amplify existing research, the Social Equality in the “Sharing Economy?” Symposium will consist of a series of keynotes, panel discussions, and paper presentations from a range of voices.

We invite original paper submissions from all relevant disciplines for the Symposium.

Continue reading

Blank Presents Progressive Tax Procedure Today At San Diego

Joshua Blank (UC-Irvine) presents Progressive Tax Procedure (with Ari Glogower (Ohio State)) today at San Diego as part of its Tax Law Speaker Series:

Discussions of progressive taxation in the United States—and of whether the rich pay enough in taxes—generally focus on the structure of the substantive tax law, such as the marginal rates, income brackets, deductions, and credits under the federal income tax. Despite recent reports of tax avoidance and noncompliance by high-income taxpayers, these discussions have not focused on the structure of the tax procedure rules, which govern the Internal Revenue Service’s administrative responsibilities and taxpayers’ compliance obligations.

This Article presents the case for a new system of “progressive tax procedure.” Currently, tax procedure rules—such as tax penalties and the statute of limitations—typically apply in a uniform manner to all taxpayers, irrespective of their income. Under progressive tax procedure, in contrast, these rules would vary depending on the taxpayer’s income. For example, a high-income taxpayer would face higher tax penalty rates or longer periods where the IRS could assess tax deficiencies.

Continue reading

McCoskey & Narotzki: Education Has Been 'Dumbed-Down' in Tax Reform

Melanie McCoskey (Akron) & Doron Narotzki (Akron), Education Has Been 'Dumbed-Down' in Tax Reform, 22 Fla. Tax Rev. ___ (2019):

With promises of “Make America Great Again” and tax reform for “middle-class” Americans, the current federal government administration has implied that the average American would become more prosperous under this tax system. It is no surprise that most middle-class Americans view a college education as a requirement for achieving a better life. However, under the TCJA, education has not fared well, and in reality, students from many low- and moderate-income families will face reduced scholarships from elite schools, thereby reducing diversity on these campuses. Other proposed changes to education in the original tax bill, which were later removed, are also addressed as they may hint to which direction this may go and face legislative changes in the future.

Morse: GILTI — The Cooperative Potential Of A Unilateral Minimum Tax

Susan C. Morse (Texas), GILTI: The Co-operative Potential of a Unilateral Minimum Tax, 2019 Brit. Tax Rev. 512:

Prior to the Tax Cuts and Jobs Act of 2017 (TCJA), the US allowed US parented multinationals to delay indefinitely their payment of US corporate income tax on non-US income earned by non-US corporate subsidiaries (CFCs). The TCJA revoked this permission through the enactment of a unilateral, current minimum tax on the “global intangible low-taxed income” (GILTI) of CFCs. The post-TCJA US international tax law generally imposes current US tax on CFC income subject to reductions for foreign income taxes paid or accrued. This US regime supports the continued existence of a corporate income tax and presents an opportunity to co-ordinate the details of corporate income tax systems globally. Similarity among systems, for instance with respect to rate, timing and base, would further strengthen the corporate income tax and perhaps support innovations such as formulary apportionment.

Continue reading

Robinson Presents Negotiated Tax Havens Today At Penn

Leslie Robinson (Dartmouth) presents Negotiated Tax Havens (with Kevin Markle (Iowa)) at Pennsylvania today as part of its Tax Law and Policy Workshop Series hosted by Michael Knoll, Chris Sanchirico, and Reed Shuldiner:

The intersection of state aid and international tax has acquired a high profile in Europe. In response, disclosure policies are being proposed. With no empirical evidence, these policies are predicated on rhetoric that pervasive practices by host country governments unfairly benefit foreign-owned companies. Using several novel data sources on tax relief granted in the EU, we find that both domestic- and foreign-owned companies benefit from tax concessions. Our evidence that tax avoidance is a joint production function of business and government suggests that any jurisdiction can operate as a tax haven for a company willing to negotiate. ...

Conclusion.  Overall, our results suggest that state aid offers tax benefits to both foreignowned and domestic-owned companies. Aid that is pre-approved appears more likely to benefit domestic-owned companies, perhaps because helping domesticowned companies is more likely to meet a broader EU objective than aiding foreign-owned companies. The recent trend towards enhanced disclosure of tax rulings as well as disclosure of aid granted at the level of the beneficiary are, in our view, necessary steps toward appropriate enforcement of state aid rules in the EU. However, because state aid does appear to benefit domestic-owned companies, the automatic exchange of tax rulings should cover all rulings, not just those issued to foreign-owned companies.

Continue reading

ABA And UNLV Host Webinar Today On Economic, Gender And Racial Inequality In State & Local Tax Systems

The ABA and UNLV Law School host a webinar today (12:30 pm PST) on Economic, Gender and Racial Inequality in State and Local Tax Systems:

• Bridget Crawford (Pace)
• Lisa Christensen Gee (Institute on Taxation & Economic Policy)
• Francine Lipman (UNLV) (moderator)
• Kirk Stark (UCLA)

Over the past four decades, wealth has increasingly concentrated among the highest-income households. These households are disproportionately White and male. In 2018, three White men held aggregate wealth greater than the aggregate wealth of one-half of Americans. The median White household has 41 times more wealth than the median Black household and 22 times more wealth than the median Latinx household. On average women earn less than men in all industries. The largest pay gaps are in management, in which men earned $88,000 on average in 2016, compared to $55,000 for women. At the intersection of race and gender the gaps are even more shocking. Women of color are disproportionately poor suffering poverty rates of 21.4% Black women, 18.7% Latinas, and 22.8% Native American women, as compared to 7% for White men The United States exhibits wider disparities of wealth than any other major developed nation.

Continue reading

LaPlante Presents The Effect Of Intellectual Property Boxes On Innovation And Effective Tax Rates Today At NYU

Stacie LaPlante (Wisconsin), The Effect of Intellectual Property Boxes on Innovative Activity & Effective Tax Rates (with Tobias Bornemann (Vienna University of Economics and Business) & Benjamin Osswald (Wisconsin)) at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

We investigate whether and to what extent the adoption of an intellectual property box increases innovative activity and the extent to which different types of firms benefit financially. We examine the adoption of the intellectual property box in Belgium because it allows us to cleanly identify the impact on innovative activity and effective tax rates. Our results indicate an overall increase in innovative activity as proxied by patent applications, grants, and highly-skilled employment, at the expense of patent quality. We also provide evidence that firms with patents on average enjoy 7.2% to 7.9% lower effective tax rates, with the greatest financial benefits accruing to multinational firms compared to domestic firms

Continue reading

The Arm's Length Standard Is Not The Problem

Lorraine Eden (Texas A&M), The Arm's Length Standard Is Not the Problem, 48 Tax Mgmt. Int'l J. 10 (Oct. 11, 2019):

The historical approach to taxing intrafirm transactions of multinational enterprises — the arm’s-length standard (ALS) — has been criticized as unworkable, out of date and on death’s door. Criticisms of the ALS fall into two broad categories. First are concerns that MNEs have been deliberately engaging in abusive transfer pricing that is extensive, unfair and draining development. Second is that the transfer pricing rules are too difficult to implement for various reasons, of which the two most important reasons are the lack of arm’s-length comparables (e.g., for hard-to-value intangibles) and that MNE have synergies not available to unrelated parties. As a result, many academics and policy makers advocate getting rid of the ALS and shifting to global formulary apportionment (GFA). Even the OECD, long a supporter of the ALS and opponent of GFA, now includes fractional apportionment as a possible method for attributing income among countries under its Pillar 1 proposals for taxing the digital economy. My views are different. My preferred policy response to the income shifting problem is two-fold.

Continue reading

Hayashi Presents State And Local Taxation Of Foreign Investment In Real Property Today At Loyola-L.A.

Andrew Hayashi (Virginia) presents Bullion in the Sky: State and Local Taxation of Foreign Investment in Real Property at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Ellen Aprill and Ted Seto:

The current protectionist moment is characterized not only by national restrictions on immigration and international trade. Cities have played their part, adopting direct restrictions and taxes on foreign ownership of real property and imposing taxes on second homes and vacant properties that indirectly burden foreign investment. Although these laws are new, they draw from a well of suspicion regarding foreign ownership that is very old. We provide economic and historical context for the current wave of local restrictions on foreign owners of real property and evaluate the legality of such restrictions under U.S. law. We then assess the policy merits of these laws within an economic framework that highlights the role that law can play in helping individuals manage the wide variety of economic risks that they face. We describe the circumstances under which local restrictions on foreign property ownership can help or hurt local residents.

Continue reading

Lesson From The Tax Court: One Year At A Time

I do not teach much tax accounting in my basic tax class.  I do, however, teach the general rule in §441(a) that each tax year stands alone.  Last week’s case of Roger G. Maki and Lilane J. Gervais v. Commissioner, T.C. Summary Op. 2019-34 (Nov. 4, 2019) (Judge Gerber), illustrates that general rule.  In Maki, the taxpayers won a §162 deduction for Mr. Maki’s travel away from home.  What makes this case fun is that these are the same retired taxpayers I blogged about last year in “Where Is A Retiree’s Tax Home.”  In both cases they won the issue, albeit for a smaller amount than they had claimed.  The lesson here is that a win in the first case did not guarantee the win in the next.  Details below the fold.

Continue reading

Borden: Sec. 1031 Exchanges Within Qualified Opportunity Funds

Bradley T. Borden (Brooklyn), Wrapped Nonrecognition: Code Sec. 1031 Exchanges Within Qualified Opportunity Funds, 22 J. Passthrough Entities 37 (2019):

This article is about section 1031 exchanges wrapped in qualified opportunity funds (QOFs). QOFs are new, so they are in the process of buying property, but eventually some QOFs will think about selling their property. To qualify for the full benefit of the QOF regime, a QOF must hold property for at least 10 years. Prior to the end of that 10-year period, some QOF investors may get antsy and want to sell the QOF’s property. If they sell the property for gain, they will lose some or all of the QOF benefits. This article considers whether a QOF can sell property and use the proceeds to acquire like-kind replacement property and defer gain on that transaction under section 1031. If so, a QOF could sell its original property, defer gain on that sale, and remain eligible for the QOF exclusion. The article illustrates that although in concept wrapped nonrecognition is possible, it is not without its challenges.

Continue reading

Bloomberg Tax Podcast With Sam Brunson: When Religion Tangles With Tax Law

Bloomberg Tax Podcast: When Religion Tangles With Tax Law: Things to Consider:

In the U.S., religious practices have an unclear relationship to the tax code. Sam Brunson, a professor at Loyola University Chicago School of Law, has an idea to give some structure to the way policy makers deal with that relationship.

Congress historically writes religious accommodations into the tax code on a case-by-case basis: A group of people appears with a specific tax problem, and lawmakers decide whether to write a fix.

But what if there were a framework that would help them consider the problems consistently and fairly? Brunson proposes such a framework in his book, God and the IRS: Accommodating Religious Practice in United States Tax Law.

Continue reading

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 #3. The #1 paper is #88 among 14,703 tax papers in all-time downloads:

1. [2,309 Downloads]  Taxing the Rich: Issues and Options, by Lily Batchelder (NYU) & David Kamin (NYU)
2. [268 Downloads]  Boiling Starbucks’ Roasting Down to the Essence of its Residual, by William Byrnes (Texas A&M)
3. [233 Downloads]  The Arm's Length Standard Is Not the Problem, by Lorraine Eden (Texas A&M)
4. [198 Downloads]  Implications for Apple in the Lower Court Rulings in Starbucks and Fiat, by Ruth Mason (Virginia)
5. [195 Downloads]  Digital Service Taxes and the Broader Shift From Determining the Source of Income to Taxing Location-Specific Rents, by Daniel Shaviro (NYU) (reviewed by Young Ran (Christine) Kim (Utah) here)

Is The Tax Cuts And Jobs Act GILTI Of Anti-Simplification?

Christine Davis (S.J.D. (Tax) 2020, Florida), Is the Tax Cuts and Jobs Act GILTI of Anti-Simplification?, 38 Va. Tax Rev. 315 (2019):

In December 2017, Congress enacted tax reform legislation, commonly referred to as the “Tax Cuts and Jobs Act” or “TCJA,” which fundamentally changed the United States’ international corporate taxation system. The TCJA was enacted quickly; the bill was signed into law less than 2 months after the House of Representatives introduced it. Since that time, tax professionals across the United States and around the world have worked overtime to try to understand the new tax laws. Now that the U.S. Treasury Department is releasing and requesting comments on proposed tax regulations, practitioners must have a thorough understanding of the TCJA. This paper attempts to reduce the complexity of the TCJA’s international tax provisions by examining global intangible low-taxed income (“GILTI”) and its interaction with other provisions that implement income taxation of cross border corporations.

Continue reading

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Listokin's Posner on Tax: The Independent Investor Test

This week, David Elkins (Netanya) reviews a new work by Yair Listokin (Yale), Posner on Tax: The Independent Investor Test, 86 U. Chi. L. Rev. 1159 (2019):

Richard Posner is one of the most influential legal scholars of recent generations. He is perhaps best known as a leading figure in the school of Law and Economics. Complimenting his academic work, he served as a judge on the Seventh Circuit Court of Appeals for 36 years before retiring in 2017. In the field of taxation, one of his more memorable decisions was Exacto Springs Corp. v. Commissioner, 196 F3d 833 (7th Cir. 1999), which concerns the characterization of payments from closely held corporations to individuals who are both shareholders and employees: is the payment properly classified as a salary or as a distribution?

The question of how to characterize payments to shareholders arises whenever shareholders provide services or sell property to the corporation that they control. If a shareholder leases property to a corporation, is the payment that the parties describe as rent truly rent or is it only partly rent and partly a distribution? The issue of classification is particularly significant in the field of international taxation. For example, if a corporation operating in Country A pays what it describes as a royalty to a parent (or otherwise related) corporation in Country B, is the payment actually a deductible royalty or is it a nondeductible distribution? The answer to that question may determine whether Country A can collect tax from the economic activity in its territory.

Continue reading

Kim Presents The Digital Services Tax: A Cross-Border Variation Of The Consumption Tax Debate? At BYU

Young Ran (Christine) Kim (Utah) presented The Digital Services Tax: A Crossborder Variation of Consumption Tax Debate at BYU yesterday as part of its Faculty Workshop Series:

As highly digitalized business models, such as Google, Amazon, and Facebook, have been mainstreamed in the economy, the traditional profit allocation and nexus rules of taxation are further strained. Traditionally, profit is allocated to market countries when the business has physical presence there. However, highly digitalized business models can generate profits in market countries without physical presence. Thus, market countries, especially the EU, have started imposing a digital services tax (“DST”) on the gross revenue generated in jurisdictions with highly digital business models, which has ignited heated debate across the globe.

DST is criticized as “ring-fencing,” or segregating, certain digital business models, because it arguably imposes a disguised corporate income tax on the profits of only certain digital firms, which discriminates against American tech giants. However, while DST is politically driven, the criticism is largely based on practical concerns and focused on the imminent impact, such as who is the winner and loser in the short term, rather than considering DST theoretically. More importantly, there is little discussion of the consumption tax aspect of the DST. DST is a turnover tax, which is a subcategory of consumption tax levied on the gross revenue of a firm. However, strangely, there is little discussion of the theoretical value of DST as a consumption tax.

Continue reading

Columbia Journal Of Tax Law Publishes New Issue

The Columbia Journal of Tax Law has published Vol. 10, No. 2:

• Meredith R. Conway (Suffolk), And You May Ask Yourself, What Is That Beautiful House: How Tax Laws Distort Behavior Through the Lens of Architecture, 10 Colum. J. Tax L. 165 (2019)
• Kartikeya Singh (PricewaterhouseCoopers, Washington D.C.) & Aparna Mathur (American Enterprise Institute), The Impact of GILTI and FDII on the Investment Location Choice of U.S. Multinationals, 10 Colum. J. Tax L. 199 (2019)

Continue reading

Matching Tax With Economics In Subchapter K

Zhiyuan Zuo (Cleary Gottlieb, New York), A Gain Must Lie Where It Falls: Matching Tax with Economics in Subchapter K, 11 Colum. J. Tax L. ___ (2019):

Society suffers efficiency costs when tax and economics are mismatched. This principle is illustrated by the tax neutrality doctrines that are the cornerstone of the U.S. international tax system and by the BEPS’s efforts to combat arbitrary income shifting. While society has an interest in maximizing pre-tax income from all economic activities, self-interested taxpayers seek only to maximize their after-tax income. A good, non-arbitrary tax policy must thus incentivize taxpayers to maximize both their pre-tax and after-tax income. This note provides a novel efficiency analysis of the rules under Subchapter K and reveals the efficiency costs that arise when arbitrary tax liabilities sever the positive connection between pre-tax and after-tax income. It applies the insight gained from the efficiency analysis to the Treasury’s various flawed efforts under Subchapter K to match tax with economics, including the Substantial Economic Effect (SEE) safe harbor and doctrines under section 704(c). The Article then explores alternatives to the Treasury’s “one-size-fits-all” solution, focusing on a detailed analysis of the economic effect equivalence (EEE) test and so-called target allocations

Continue reading

Financial Transactions Tax: If Not Now, When?

Doron Narotzki (Akron), Financial Transactions Tax – If Not Now, When?, 165 Tax Notes 47 (Oct. 7, 2019):

In this article, Narotzki discusses the short history of the financial transaction tax in the United States and why now is the perfect time to adopt it.

Continue reading

Kysar Presents Unravelling The Tax Treaty Today At Pennsylvania

Rebecca Kysar (Fordham) presents Unravelling the Tax Treaty, 103 Minn. L. Rev. ___ (2019), at Pennsylvania today as part of its Tax Law and Policy Workshop Series hosted by Michael Knoll, Chris Sanchirico, and Reed Shuldiner:

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

Continue reading

Federal Taxation Of Cannabis

Kat Allen (Wykowski Law, San Francisco), Federal Taxation of Cannabis, Parts I - III:

• Part I: The Tax Law's War on Drugs, 164 Tax Notes 855 (Aug. 5, 2019): "In the first of a three-part series on the
  taxation of cannabis, Allen provides a framework for debate regarding the tax code’s treatment of illegal activities or payments.
• Part II: Timing Is Everything, 164 Tax Notes 1041 (Aug. 12, 2019):  "In this second installment of a three-part series, Allen examines the code’s timing rules for state-regulated cannabis businesses."

Continue reading

Listokin: Posner on Tax — The Independent Investor Test

Yair Listokin (Yale), Posner on Tax: The Independent Investor Test, 86 U. Chi. L. Rev. 1159 (2019):

This paper, written in honor of Judge Richard Posner’s retirement from the federal judiciary, uses his opinion in Exacto Spring v. Commissioner [196 F.3d 833 (7th Cir. 1999)] as a lens into his tax law jurisprudence more generally. In Exacto Spring, Posner delivers a devastating rejection of the muddled multifactor test then in effect to distinguish reasonable salaries, which are deductible from corporate income, from disguised dividends, which aren’t. Posner replaces the multifactor test with the independent investor test, which focuses the judicial inquiry on the substance of the transaction. I critique Posner’s application of the independent investor test to the problem of salary disguised as dividends, showing that it yields perverse outcomes by treating equity as a fixed claim, rather than a residual claim. But I show that, when applied to dividends disguised as debt, the independent investor test offers great promise.

Continue reading

Call For Student Tax Papers: 2020 Chris Bergin Award for Excellence In Writing

Christopher E. Bergin Award for Excellence in Writing:

The Christopher E. Bergin Award for Excellence in Writing recognizes superior student writing on unsettled questions in tax law or policy. It is named in honor of the late Christopher E. Bergin, former president and publisher of Tax Analysts and longtime editor of Tax Notes Federal. The award, given annually, epitomizes the qualities that Chris championed.

No one cared more than he did about clear, precise writing about taxation, and he instilled that passion in our whole staff.
Cara Griffith, Tax Analysts President and CEO

To learn more about Christopher E. Bergin, click here.

Eligibility: Must be enrolled in an accredited undergraduate or graduate program during the academic year.
Topic: Submissions should focus on an unsettled question in federal, state, or international tax law or policy.
Evaluation: Our editorial staff blindly evaluates entries on originality, readability, organization, reasoning, and overall quality of content.
Due Date: June 30, 2020

Click here for competition guidelines.

Continue reading

Fleurbaey Presents Optimal Income Taxation Theory And Principles Of Fairness Today At NYU

Marc Fleurbaey (Princeton) presents Optimal Income Taxation Theory and Principles of Fairness at NYU today as part of its Tax Policy Colloquium Series hosted by Lily Batchelder and Daniel Shaviro:

The achievements and limitations of the classical theory of optimal labor-income taxation based on social welfare functions are now well known. Even though utilitarianism still dominates public economics, recent interest has arisen for broadening the normative approach and making room for fairness principles such as desert or responsibility. Fairness principles sometimes provide immediate recommendations about the relative weights to assign to various income ranges, but in general require a careful choice of utility representations embodying the relevant interpersonal comparisons. The main message of this paper is that the traditional tool of welfare economics, the social welfare function framework, is flexible enough to incorporate many approaches, from egalitarianism to libertarianism.

Glogower Presents Progressive Tax Procedure Today At UC-Hastings

Ari Glogower (Ohio State) presents Progressive Tax Procedure (with Joshua Blank (UC-Irvine)) at UC-Hastings today as part of its Tax Speakers Series hosted by Heather Field and Manoj Viswanathan:

Discussions of progressive taxation in the United States—and of whether the rich pay enough in taxes—generally focus on the structure of the substantive tax law, such as the marginal rates, income brackets, deductions, and credits under the federal income tax. Despite recent reports of tax avoidance and noncompliance by high-income taxpayers, these discussions have not focused on the structure of the tax procedure rules, which govern the Internal Revenue Service’s administrative responsibilities and taxpayers’ compliance obligations.

This Article presents the case for a new system of “progressive tax procedure.” Currently, tax procedure rules—such as tax penalties and the statute of limitations—typically apply in a uniform manner to all taxpayers, irrespective of their income. Under progressive tax procedure, in contrast, these rules would vary depending on the taxpayer’s income. For example, a high-income taxpayer would face higher tax penalty rates or longer periods where the IRS could assess tax deficiencies.

Continue reading