Paul L. Caron
Dean




Monday, October 3, 2022

Lesson From The Tax Court:  Don’t Confuse Dummy Returns With Substitutes For Returns

Camp (2021)The act of filing a return is central to tax administration. Section 6011 sets out the general requirement: “any person made liable for any tax imposed by this title” must file a return “according to the forms and regulations prescribed by the Secretary.”  Section 6012 gets more granular and gives more specific requirements and exemptions from filing.

When a taxpayer fails to file a return, even after being reminded to do so, the IRS can simply send the taxpayer a Notice of Deficiency (NOD), and let the taxpayer either agree to the proposed tax liability or petition Tax Court.  Or the IRS can follow the §6020 Substitute For Return (SFR) process whereby it creates a return for the taxpayer either with or without the taxpayer’s cooperation.

Regardless of how the IRS deals with the non-filer, an IRS employee first needs to create an account in the computer system for the relevant tax period.  They do that by inputting the proper Transaction Code and preparing what is called a “dummy return” to support it.  But there is one important difference between dummy returns used to set up the NOD process and dummy returns used to set up the SFR process: the §6651(a)(2) failure to pay penalties only apply to the failure to pay taxes shown on a “return.”  Thus, the penalties do not apply to bare NODs.  They do apply to SFRs.  That’s why today’s lesson is useful.

In William T. Ashford v. Commissioner, T.C. Memo. 2022-101 (Sept. 29, 2022) (Judge Vasquez), we learn what to look for in the IRS files to see whether a dummy return used by the IRS leads to a proper SFR or not.  We also learn why you cannot always trust the advice you see on the IRS website.  Details below the fold.

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October 3, 2022 in Bryan Camp, New Cases, Scholarship, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Sunday, October 2, 2022

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)[321 Downloads]  The Passthrough Entity Tax Scandal, by Daniel Hemel (NYU; Google Scholar) (reviewed by David Elkins (Netanya; visiting NYU 2021-23; Google Scholar) here)
  2. [189 Downloads]  Standing On the Shoulders of LLCs: The Tax Entity Status and Decentralized Autonomous Organizations, by Samuel Brunson (Loyola-Chicago; Google Scholar)
  3. [176 Downloads]  The Abandonment of International College Athletes by NIL Policy, by Victoria Haneman (Creighton; Google Scholar) & David Weber (Creighton; Google Scholar)
  4. [168 Downloads]  International Tax Reform: Challenges to Multilateral Cooperation, by Assaf Harpaz (Drexel; Google Scholar)
  5. [165 Downloads]  Supervisory Approval of Penalties: The Opening of a Graev Pandora's Box, by Monica Gianni (California State University Northridge)

October 2, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, October 1, 2022

A Re-examination Of The Capital Gains Tax Preference

Robin Morgan (S.J.D. 2023, Harvard), Note, Flawed Foundations: A Re-examination of the Reason and Purpose Behind the Capital Gains Tax Preference, 18 N.Y.U. J.L. & Bus. 599 (2022):

NYU J of Law & BusinessThe favorable taxation of capital gains has seen extensive ex-post celebration and condemnation, but the ex-ante reason for its enactment has largely been forgotten. This Note, written one hundred years after the capital gains tax preference was first enacted in 1921, responds to this gap by re-examining legal history to ask two simple questions: why does the capital gains preference exist as a matter of law and what can be learned from why it was enacted? I find that Congress was presented with two options to address the problem of high tax rates on capital gains yielding surprisingly little revenue in the early 20th century. The first option was to adopt broader, foundational changes to the taxation of capital gains to make the tax harder to avoid, while the second was to simply enact a low, preferential tax rate that taxpayers would willingly pay. They chose the second option, and I present data from the IRS Statistics of Income to provide some empirical evidence that the lower rates did yield greater revenue. 

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October 1, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Friday, September 30, 2022

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Falcão's Carbon Tax Policy And The EU Green Deal

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews a new work by Tatiana Falcão (international tax consultant), Updating Carbon Tax Policy Is Crucial to the EU Green Deal, 103 Tax Notes Int'l 485 (July 26, 2021).

Kim

The 2022 Congress of the International Fiscal Association (IFA) was held in Berlin, Germany, earlier this month after the two virtual Congresses in 2020 and 2021. In this long-awaited in-person event, the OECD's tax head Pascal Saint-Amans, who led the base erosion and profit shifting (BEPS) project and brokered the two-pillar global tax deal, announced his departure. Although the successful implementation of the global tax deal is still uncertain, it is hard to deny that Saint-Amans has been at the center of the efforts to update the international tax system. Personally, I appreciate his making the international tax a more exciting and dynamic subject, not only because he led the BEPS project and the global tax deal but also because he contributed to establishing the automatic exchange of tax information systems and building the inclusive framework on BEPS. It is indeed the end of a chapter in the international tax discourse.

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September 30, 2022 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week’s Tax Workshops

Next Week's Tax Workshops - twitterMonday, October 3: Reuven Avi-Yonah (Michigan; Google Scholar) will present A New Framework For Taxing Cryptocurrencies (with Mohanad Salaimi (S.J.D. 2022, Michigan)) as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please RSVP here.

Monday, October 3: Jeesoo Nam (USC; Google Scholar) will present Just Taxation of Crime as part of the San Diego Tax Law Speaker Series

Tuesday, October 4: Cliff Fleming (BYU; Google Scholar) will present Viewing the GILTI Rates Through a Tax Expenditure Lens (with Stephen Shay (Boston College; Google Scholar) & Robert Peroni (Texas)) at the Vienna University of Economics and Business.

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September 30, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Thursday, September 29, 2022

Raskolnikov Presents Should Only The Richest Pay More In Taxes? Today At Columbia

Alex Raskolnikov (Columbia) presents Should Only the Richest Pay More? at Columbia today as part of its Faculty Workshop:

Alex_raskolnikov_0This paper challenges the leading academic, political, and cultural narrative supporting greater redistribution. The narrative holds that redistribution should come at the expense of a very restricted group of the highest earners: the one percent, the super-rich, the billionaire class. I argue that many reasons offered in support of this view also call for redistribution from a much broader group that includes the affluent—those with incomes in the ninetieth to ninety ninth percentiles of the distribution. Whether one looks at the recent trends in income concentration, wealth concentration, social mobility, economic growth, political polarization, or the rise of populism, the affluent are as great—and sometimes greater—contributors to these problems as those in the top one percent. Remarkably, contemporary legal and economic scholarship has ignored the affluent almost completely, greatly limiting the magnitude of possible economic transfers as well the forms that these transfers may take.

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September 29, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

The Code Section 267 Related Party Rules: When Do They Apply To Section 351 Transactions?

Doron Narotzki (Akron; Google Scholar) & Melanie McCoskey (Akron; Google Scholar), The Code Section 267 Related Party Rules: When Do They Apply to Section 351 Transactions?, 136 J. Tax'n __ (2022):

Code Section 351 states that property transferors do not recognize gain or loss when they have control of the corporation immediately after the exchange. If the control requirements are not met, any realized loss that would be allowed under Code Section 351 may be disallowed under the Code Section 267 related party rules. One question that has not been addressed clearly in any primary source of authority is the proper time for testing to determine whether the related party rules apply. This article attempts to provide a review of the relevant legislation and court cases in order to provide guidance on this issue.

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September 29, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, September 28, 2022

Adediran: Disclosures For Equity

Atinuke O. Adediran (Fordham; Google Scholar), Disclosures for Equity, 122 Colum. L. Rev. 865 (2022): 

Columbia Law ReviewThis Article addresses how to increase funding to nonprofit organizations that are led by minorities or serve communities of color and how to hold corporations and private foundations who make public commitments to fund these organizations accountable for those commitments. The Article makes two policy recommendations to address these problems, while engaging with Supreme Court jurisprudence on mandatory disclosures to ensure that the proposals are narrowly tailored to institutional donors and include an opt-out provision so as not to chill the constitutional protection of the freedom of association. The first is for charities to publicly disclose their institutional donors in Schedule B of Internal Revenue Service (IRS) Form 990. The second is to modify IRS Form 990 to include information on the race and ethnicity of top managers, boards of directors, and the communities an organization serves.

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September 28, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Nurturing The Baby Bond Proposal: How Tax Principles Can Close The Racial Wealth Gap In The United States

James T. Smith (J.D. 2022, Temple), Comment, Nurturing the Baby Bond Proposal: How Tax Principles Can Close the Racial Wealth Gap in the United States, 94 Temp. L. Rev. 147 (2021):

“Every day I’m trying to play catch-up,” said Kourtney McGowan—a Black mother from California who became unemployed after her company refused to accommodate her work schedule during the COVID-19 pandemic. McGowan noted that she could not “have [her] son in [her] office for eight hours every day,” and she had no reliable plan for childcare. She turned her eight-year-old son to therapy to address his anxieties stemming from the pandemic. “Raising Black boys is hard in itself . . . . I’m just trusting God,” said McGowan.

The United States of America is the wealthiest country in the world, but, paradoxically, it has the largest wealth gap in the world. The wealth gap in the United States is starkest between races—Black wealth per family has declined by approximately 50% since 1983, while White wealth per family has increased by 33%. Families, like the McGowans, are finding themselves in difficult positions where they are “going to have quite a bit less to leave to their children.” Black children are more likely to live in poverty than their White peers, which impacts not only their physical and mental health but also their ability to achieve economic mobility.

Congress has relied primarily on fiscal policy mechanisms to provide substantial economic stimulus to the public and private sectors of the U.S. economy through the Tax Cuts and Jobs Act (TCJA) and—in the face of a raging pandemic—through the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). However, these policies have fallen short of erasing racial economic disparities; in some cases, the policies have increased these disparities.

In order to address the racial economic gap, scholars and researchers across the United States have promulgated the idea of a “baby bond.” Upon the birth of an American child, that child would be provided a trust fund, which would become accessible when the child becomes a young adult. Each child would receive varying amounts of funds that would correlate inversely with the net worth of the child’s household at the time of birth. U.S. Senator Cory Booker (D-NJ) and others have adopted this idea but rely on gross familial income to calculate the amount of each disbursement, as opposed to actual wealth. The baby bond solution is gaining traction within academia and policy spheres.

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September 28, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Dickerson Reviews Brown's The Whiteness Of Wealth

A. Mechele Dickerson (Texas), Shining a Bright Light on the Color of Wealth, 120 Mich. L. Rev. 1085 (2022) (reviewing Dorothy A. Brown (Georgetown; Google Scholar), The Whiteness of Wealth: How the Tax System Impoverishes Black Americans — And How We Can Fix It (2021)):

Michigan Law Review (2022)Professor Dorothy A. Brown boldly asserts in The Whiteness of Wealth: How the Tax System Impoverishes Black Americans — And How We Can Fix It  that “whiteness has consistently and continually played a serious role in wealth building” (p. 20). Using stories from her life and the lives of other Black taxpayers, Brown methodically exposes how the same tax laws and policies that help whites build intergenerational wealth impoverish Blacks. Although readers who lack a business or legal background may not grasp the intricate technicalities of the Internal Revenue Code sections that Brown dissects, that does not matter. The clarity of Brown’s writing, her storytelling, and vivid examples involving her parents (Miss Dottie and James) and other ordinary Black taxpayers convey complex points—think tax policy preferences for horizontal equity or the lock-in effect—with ease.

This Review examines Brown’s powerful assertion that tax policies build and protect intergenerational white wealth and exacerbate the racial wealth gap by subsidizing activities and personal choices that disproportionately benefit white taxpayers. Those stunned by the enormity of this racial wealth gap will be horrified to learn that tax policies were designed to create white wealth.

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September 28, 2022 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, September 27, 2022

Taub Presents No Income Taxation Until Basic Accommodations: Toward Tax Justice In America Today At NYU

Jennifer Taub (Western New England; Google Scholar) presents No Income Taxation Until Basic Accommodations: Toward Tax Justice in America at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

TaubTax reform proposals recently promoted by progressive policymakers and candidates for elected office have focused on increasing federal taxes assessed on and paid by large business enterprises and wealthy individuals. These types of recommendations are designed to achieve redistributive justice based policy goals and also wisely follow the changing direction of public sentiment. From a policy perspective, economic research suggests that this sort of tax-receipts driven redistribution is essential in order to stem –– and ideally reverse –– growing wealth and income inequality trends. As for popular sentiment, the timing is good as the American public was already stirred up in response to the 2017 Republican-championed tax cuts for corporations and the super wealthy. Now, post-pandemic, the American people are even more receptive than they were before to taxing perceived coronavirus profiteering by billionaires and transnational corporations. We can also see evidence of strong support for targeting tax increases on big business and well-off individuals in polling as well as recent responses to the Inflation Reduction Act, the August 2022 legislation that moves modestly in that direction including with a financial-statement based fifteen percent alternative minimum tax on corporations that have on average $1 billion or more in annual earnings. 

These efforts to raise revenue and reduce inequality through taxation are commendable. However, there’s something mostly missing from this agenda that proposes (and recently achieved) adding additional taxes for corporations and the wealthy. Absent, so far, is a serious discussion of direct tax relief for the rest of us.

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September 27, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Mann Presents Energy Tax Policy And Support For Zero-Emission Cars In Fleets Today At UC-Hastings

Roberta Mann (Oregon) presents Taxation Support for Zero-Emission Cars in Fleets: Cases from the US and Australia at UC-Hastings (with Diane Kraal (Monash; Google Scholar)) today as part of its Tax Speaker Series hosted by Heather Field:

Roberta-mannTwo qualitative case studies of fleet vehicles in the US and Australia are presented that consider the effect of energy tax policy to increase light car zero-emission electric vehicles (ZEV) adoption in each jurisdiction. The article reflects on tax policies of selected European countries with EV uptakes that surpass the US and Australia. This research makes a substantial contribution to energy policy in the US and Australia by determining energy policies that can enhance the uptake of light car ZEVs, thereby linking to the United Nation’s target of reducing CO2 emissions in the transport sector. Recommendations are supported by analysis of case study transport emissions and government data. This article is significant because it presents strategies for more effectively using tax for energy policy in the US and Australia to increase the number of light car ZEVs. Taxation is seen as necessary to complement EV technology. The US case study finds tax changes are needed to support the current US energy policy of increased uptake of electric vehicles in government fleets.

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September 27, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Evaluating The Tax Veto In A Digital Age: Legislative Efficiency And National Sovereignty In The European Union

Charlotte A. McFaddin (J.D. 2021, Virginia; Associate, Weil, Gotshal & Manges, Washington, D.C.), Note, Evaluating the Tax Veto in a Digital Age: Legislative Efficiency and National Sovereignty in the European Union, 62 Va. J. Int'l L. 429 (2022):

Virginia Journal of International LawThe total market capitalization of the six largest U.S.-headquartered tech companies now tops $4.5 trillion; yet much of their revenues legally escape taxation every year. Recognizing the challenges of taxing the digital economy, the international community joined forces to reform the outdated global tax framework. In 2018, however, the United States hesitated to commit to reform and international negotiations stalled. The European Commission (Commission) subsequently proposed an interim Digital Service Tax for the European Union (EU), in part, to incentivize stronger U.S. involvement in negotiations. Because the European Council requires unanimity when voting on tax proposals, however, the proposal failed when three Member States exercised their tax veto. Defeated by veto, EU leaders could have pursued Enhanced Cooperation to revive the legislation. Instead, the Commission proposed permanent elimination of tax unanimity through the obscure and never used Passerelle Clauses that allow legislators to utilize majority voting without amending any treaties. In doing so, the Commission signaled its desire for the European Union to emerge as a global tax leader, unencumbered by the need to obtain unanimity. However, the Commission’s proposal also raises serious EU state sovereignty concerns. 

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September 27, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, September 26, 2022

Raskolnikov Presents Should Only The Richest Pay More Taxes? Today At UC-Irvine

Alex Raskolnikov (Columbia) presents Should Only the Richest Pay More? at UC-Irvine today as part of its Tax Policy Colloquium:

Alex_raskolnikov_0This paper challenges the leading academic, political, and cultural narrative supporting greater redistribution. The narrative holds that redistribution should come at the expense of a very restricted group of the highest earners: the one percent, the super-rich, the billionaire class. I argue that many reasons offered in support of this view also call for redistribution from a much broader group that includes the affluent—those with incomes in the ninetieth to ninety ninth percentiles of the distribution. Whether one looks at the recent trends in income concentration, wealth concentration, social mobility, economic growth, political polarization, or the rise of populism, the affluent are as great—and sometimes greater—contributors to these problems as those in the top one percent. Remarkably, contemporary legal and economic scholarship has ignored the affluent almost completely, greatly limiting the magnitude of possible economic transfers as well the forms that these transfers may take.

Continue reading

September 26, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Neves & Semmler Present A Proposal For A Carbon Wealth Tax Today At Loyola-L.A.

Jose Pedro Bastos Neves (The New School) & Willi Semmler (The New School) presents A Proposal for a Carbon Wealth Tax: Modelling, Empirics, and Policy at Loyola-L.A. today as part of its Tax Policy Colloquium hosted by Theodore Seto:

Bastos-neves-semmlerAlthough economists widely advocate carbon pricing as an effective solution to reduce carbon emissions, this mechanism has had so far limited effects. This paper proposes a new type of tax to help finance (and accelerate) the green transition. The “carbon assets” tax would be levied on carbon-intensive (brown) wealth rather than carbon-intensive goods. We consider tax implementation issues such as tax base, incidence, and efficiency. Moreover, we analyze the impacts of such a tax scheme by setting up a model of asset pricing and dynamic portfolio decisions. Green and carbon-intensive returns used in the model are calibrated with low-frequency returns on stock prices between 2010 and 2021.

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September 26, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Lesson From The Tax Court: Honor The Corporate Fiction

Camp (2021)A corporation has no soul to be damned and no body to be kicked.  So supposedly said Baron Thurlow long, long ago.  It is but a  legal fiction.  It’s not the Borg (which is science fiction, not legal fiction).

The fictional nature of corporations creates all kinds of gnarly problems in criminal law, in constitutional law and, as we learn today, in tax law.  When I was in practice my clients often confused their personal selves with the closely held corporate doppelganger I created for them.  They repeatedly ignored the corporate fiction.  They were the kings of their empires and, like Louis XIV, they felt they were the corporation and the corporation was them.  I am sure many readers can relate to that!

In John E. Vorreyer and Melissa D. Vorreyer, et al. v. Commissioner, T.C. Memo. 2022-97 (Sept. 21, 2022) (Judge Greaves) two of the “et al” taxpayers ignored the corporate fiction to their detriment: they paid debts of their S Corporation from their personal funds and attempted to deduct those payments on their personal income tax returns as a §162 deduction. While the payments were in fact ordinary and necessary expenses for the carrying on a farm business, the corporate fiction prevented the taxpayers from taking the deduction on their individual returns.  It was not their farm business.  It was their corporation's.  Details below the fold. 

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September 26, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Sunday, September 25, 2022

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 #2:

  1. SSRN Logo (2018)[308 Downloads]  The Passthrough Entity Tax Scandal, by Daniel Hemel (NYU; Google Scholar) (reviewed by David Elkins (Netanya; visiting NYU 2021-23; Google Scholar) here)
  2. [178 Downloads]  Computation of the Effective Tax Rate and the 'Top-up Tax', by Valentin Bendlinger (Vienna University of Economics & Business) & Georg Kofler (Vienna University of Economics & Business; Google Scholar)
  3. [174 Downloads]  Standing On the Shoulders of LLCs: The Tax Entity Status and Decentralized Autonomous Organizations, by Samuel D. Brunson (Loyola-Chicago; Google Scholar)
  4. [165 Downloads]  The Abandonment of International College Athletes by NIL Policy, by Victoria Haneman (Creighton; Google Scholar) & David Weber (Creighton; Google Scholar)
  5. [138 Downloads]  International Tax Reform: Challenges to Multilateral Cooperation, by Assaf Harpaz (Drexel; Google Scholar)

September 25, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, September 23, 2022

Weekly SSRN Tax Article Review And Roundup: Layser Reviews Reimagining The Tax System Through The Work Of Dorothy Day By Crawford & Afield

This week, Michelle Layser (San Diego; Google Scholar) reviews Bridget J. Crawford (Pace; Google Scholar) & W. Edward Afield (Georgia State; Google Scholar), Yesterday’s Protestor May be Tomorrow’s Saint: Reimagining the Tax System Through the Work of Dorothy Day, 76 Tax L. Rev. __(2023).

Layser (2018)

Political protests have become more frequent in recent years, but tax protests are nothing new. The Tax Revolt of the 1970s may be fresh in memory, but people have been protesting taxation since the earliest days of the Christian church. In fact, first century tax protests against the Roman Empire were so frequent that Jesus himself is said to have weighed in on the issue, telling the Pharisees they should “render unto Caesar what belongs to Caesar and to God what belongs to God.” A simplistic reading of this passage might suggest a Christian moral imperative to pay taxes. But as Professors Bridget Crawford and W. Edward Afield remind us, at least one prominent Catholic figure disagreed. Dorothy Day, the founder of the Catholic Worker movement, made conscientious tax protest a central part of her religious practice, setting her on a path toward sainthood.

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September 23, 2022 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week’s Tax Workshops

Tax Workshops (Big)Monday, September 26: Alex Raskolnikov (Columbia) will present Should Only the Richest Pay More? as part of the UC-Irvine Tax Policy Colloquium. If you would like to attend, please RSVP here

Monday, September 26: Jose Pedro Bastos Neves (The New School) & Willi Semmler (The New School) will present A Proposal for a Carbon Wealth Tax: Modelling, Empirics, and Policy as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please contact Thedore Seto

Tuesday, September 27: Jennifer Taub (Western New England; Google Scholar) will present No Income Taxation Until Basic Accommodations: Toward Tax Justice in America as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro.

Tuesday, September 27: Roberta Mann (Oregon) will present Taxation Support for Zero-Emission Cars in Fleets: Cases from the US and Australia (with Diane Kraal (Monash; Google Scholar)) as part of the UC-Hastings Tax Speaker Series. If you would like to attend, please contact Heather Field.

Thursday, September 29: Alex Raskolnikov (Columbia) will present Should Only the Richest Pay More? as part of the Columbia Faculty Workshop.

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September 23, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Repetti Presents International Tax Policy, Manufacturing, And U.S. National Interests Today At Florida

Repetti

James R. Repetti (Boston College; Google Scholar) presents International Tax Policy, Manufacturing, and U.S. National Interests at Florida today as part of its Tax Policy Colloquium hosted by Charlene Luke:

Two tax regulations that permit U.S. multinational enterprises (MNEs) to use foreign contract manufacturers and to disregard their wholly owned foreign subsidiaries have created significant tax incentives for MNEs to move manufacturing outside the U.S. These tax incentives have contributed to the loss of 5 million manufacturing jobs, the closure of more than 91,000 plants, and a decline in domestic production since 1997. These declines have increased inequality and political instability, and have decreased U.S. national security and research and development efforts to improve production techniques. Given these harms, it makes little sense to allow these incentives to remain in our tax system.

This article proposes two amendments to the regulations to reduce or eliminate the tax incentives for offshoring.

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September 23, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Thursday, September 22, 2022

Eldar & Garber: Opportunity Zones—A Program In Search Of A Purpose

Ofer Eldar (Duke; Google Scholar) & Chelsea Garber (J.D. Candidate 2023, Duke), Opportunity Zones: A Program In Search Of A Purpose, 102 B.U. L. Rev. 1397 (2022):

Boston University Law Review (2022)In 2017, Congress created the Opportunity Zone (“OZ”) program to stimulate economic growth in low-income communities. The program was characterized by its unprecedented scale relative to previous place-based development efforts and was described as “perhaps the most ambitious economic development tool to come out of Congress in a generation.” However, the program was quickly criticized on numerous grounds, and its design flaws are so severe that several legislators have called for its reform or repeal. 

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September 22, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Countering Complexity's Corporate Bias: Tax Simplification As A Strategy To Reduce Profit Shifting In The African Extractive Sector

Tim Hirschel-Burns (J.D. 2022, Yale), Note, Countering Complexity's Corporate Bias: Tax Simplification as a Strategy to Reduce Profit Shifting in the African Extractive Sector, 47 Yale J. Int'l L. 165 (2022):

Logo-Yale-Journal-ILDespite their immense natural resource wealth and their intense need for revenue, African governments collect little revenue from the extractive sector. One significant reason for this revenue shortfall is that multinational corporations operating in the extractive sector use profit shifting strategies to artificially reduce their tax bills. These companies can typically afford large numbers of highly skilled lawyers and accountants. In contrast, African tax authorities are often highly under-resourced and undertrained. This Note argues that legal reforms that simplify tax administration would put African tax authorities and multinational corporations on a more level playing field.

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September 22, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, September 21, 2022

Guttentag: Law, Taxes, Inequality, And Surplus

Michael Guttentag (Loyola-L.A.; Google Scholar), Law, Taxes, Inequality, and Surplus, 102 B.U. L. Rev. 1329 (2022):

I Boston University Law Review (2022)n this contribution to the Boston University Law Review Symposium on Law, Markets, and Distribution, I introduce an important new exception to the presumption that the tax system is superior to the legal system as a tool to redistribute wealth. When legal rules are used to divvy up a surplus, there is no a priori reason to prefer the tax-and-transfer system over the legal system to address inequality. This is the “surplus-sharing exception.”

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September 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

ESG, Crypto, And What Does The IRS Got To Do With It?

Nizan Geslevich Packin (CUNY; Google Scholar) & Sean Stein Smith (CUNY; Google Scholar), ESG, Crypto, and What Does the IRS Got to Do With It?, 6 Stan. J. Blockchain L. & Pol'y ___ (2023):

Stanford-journal-blockchain-law-and-policyRegulation almost always lags behind innovation, and this is also the situation with many FinTech-based products and services, and particularly those offered by crypto industry players. The crypto sector is a new and innovative one, which has proven to be not only based on highly technical concepts, but also by high levels of volatility and financial risk. In attempting to understand how to address many of the issues it raises in legal fields ranging from to financial regulation such as tax requirements to environmental law, and specifically matters that relate to climate change and energy wasting, regulators often find themselves trying to implement existing legal frameworks rather than creating new, clear rules. Much has been written about the SEC’s regime of regulation by enforcement of the crypto industry, and the impact of this type of rulemaking on society, businesses and persons. However, other financial regulators adopting a similar style of rulemaking—such as the IRS—have gotten much less attention for the impact of their regulatory actions. One such notable example, which is relevant in the Environmental, Social and Governance (ESG) awareness era, relates to the unintended consequences of the IRS’ regulation by enforcement, given the impact that such new rules have on the transition to greener energy. 

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September 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Johnson: Congressional Primacy, Equitable Tolling, And Tax Court Deficiency Litigation

Steve R. Johnson (Florida State), Congressional Primacy, Equitable Tolling, and Tax Court Deficiency Litigation, 77 Tax Law. __ (2023):

Tax-lawyerIn April 2022, in the Boechler case, the Supreme Court considered the nature of the statutory deadline for filing petitions to obtain Tax Court review in collection due process (“CDP”) cases. The Court held that the statutorily prescribed 30-day filing period is not jurisdictional and is subject to nonstatutory equitable tolling in “appropriate cases.”

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September 21, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, September 20, 2022

Bearer-Friend Presents Poll Taxes, Revisited Today At UC-Hastings

Jeremy Bearer-Friend (George Washington; Google Scholar) presents Poll Taxes, Revisited at UC-Hastings today as part of its Tax Speaker Series hosted by Heather Field and Manoj Viswanathan:

Bearer-Friend (2021)This Article revisits four poll taxes imposed by Anglophone governments in the 20th century. Two of the poll taxes in the study are explicit in their statutory language of targeting based on race, ethnicity, or ancestry, while two make no mention of their intended targets in the statutory text. As this Article demonstrates, racialized targeting persists even when poll taxes make no mention of race, ethnicity or ancestry. And because poll taxes nominally include everyone—all people with heads—their ability to target specific groups of taxpayers is even more striking. In some ways, these facially neutral poll taxes are even more effective at targeting than the poll taxes that specify their political targets explicitly.

The primary audience for this Article is other tax law scholars who may only have a stylized or cursory understanding of poll taxes. A secondary audience is those outside of tax who seek to understand poll taxes from a tax scholar's point of view.  The Article draws from the statutory text of the poll taxes, the administrative guidance issued by the enforcers of the poll taxes, and the protest materials of those liable for the poll taxes. The article deploys a comparative study of four poll taxes to then arrive at broader conclusions about poll taxes specifically and tax policy more generally.

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September 20, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Mehrotra: Economic Inequality, American Fiscal Exceptionalism, And The Historical U.S. Resistance To National Consumption Taxes

Ajay K. Mehrotra (Northwestern; Google Scholar), The Missing U.S. Vat: Economic Inequality, American Fiscal Exceptionalism, and the Historical U.S. Resistance to National Consumption Taxes, 117 Nw. U. L. Rev. 151 (2022):

Northwestern Law Review (2022)Since the 1970s, economic inequality has soared dramatically across the globe and particularly in the United States. In that time, one of the obstacles of using fiscal policy to address inequality has been the growing myth of the “overtaxed American”—the misguided notion that U.S. taxpayers pay more in taxes than residents of other advanced, industrialized countries. This myth has persisted, in part, because of the peculiar and distinctive nature of the fractured American fiscal and social welfare state. Even a cursory review of comparative tax data shows that the United States, by most measures, is a low-tax country compared to other affluent nations. One reason for this shortfall is the missing U.S. value-added tax (VAT).

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September 20, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Monday, September 19, 2022

Thomas Presents Fake News And The Tax Law Today At Loyola-L.A.

Kathleen DeLaney Thomas (North Carolina; Google Scholar) will present Fake News and the Tax Law (with Erin Scharff (Arizona State)) at Loyola-L.A. today as part of its Tax Policy Colloquium hosted by Theodore Seto:

Thomas (2022)The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. However, with the rise of social media platforms, the speed at which misinformation campaigns can move to shape public opinion is far faster now. The past five years have seen a dramatic shift in the landscape of false information, and scholars in a variety of disciplines, from law to psychology to journalism, have explored the increasing influence of fake news.

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September 19, 2022 in Colloquia, Scholarship, Tax Scholarship, Tax Workshops | Permalink

Peck: Standard Oil, Consolidated Coal, And The Roots Of The Resource Curse In West Virginia

Alison Peck (West Virginia), Standard Oil, Consolidated Coal, and the Roots of the Resource Curse in West Virginia, 124 W. Va. L. Rev. 101 (2021) (reviewed by Tracey Roberts (Cumberland; Google Scholar) here):

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. 

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September 19, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Lesson From The Tax Court:  Checks ... Still Matter

CheckWho uses paper checks anymore?  Not my kids.  My daughter even prefers to incur a surcharge for using her debit card to pay her rent rather than walking a paper check to the rental office.  The practical reason, she says, is that when she uses her debit card she can immediately see the impact on her checking account balance by looking at her “available balance” number in her banking app.  If she wrote a check, she’d have to wait until the check cleared and she fears over-drawing her account.

That delay—between the time a person writes and check and the time it gets reflected in their checking account—is what gives us our lesson in Estate of William E. Demuth Jr. et al. v. Commissioner, T.C. Memo. 2022-72 (July 12, 2022 )(Judge Jones).  In that case the issue was the value of an investment account on the date of the decedent’s death.  On that date there were 10 checks totaling $436,000 that had been written on the account but had not cleared.  The Executor did not include that amount on the Form 706 because the recipients of the checks had deposited them before the decedent died.  Their accounts had been credited.  They had been paid.  Or so thought the Executor.  The IRS, however, thought that the checks had not been paid because they had not cleared the decedent’s bank.  So the money still belonged to the taxpayer and should have been included in the valuation of his Estate.

In (mostly) agreeing with the IRS, Judge Jones gives us a useful lesson on basic commercial law principles.  Maybe my kids won't care, but enough folks still use checks that it's a lesson worth remembering.  Details below the fold. 

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September 19, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (8)

Sunday, September 18, 2022

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  new papers debuting on the list at #2 and #3:

  1. SSRN Logo (2018)[295 Downloads]  The Passthrough Entity Tax Scandal, by Daniel Hemel (NYU; Google Scholar) (reviewed by David Elkins (Netanya; visiting NYU 2021-23; Google Scholar) here)
  2. [180 Downloads]  Strategic Incentives For Pillar Two Adoption, by Wei Cui (British Columbia; Google Scholar)
  3. [160 Downloads]  Standing On the Shoulders of LLCs: The Tax Entity Status and Decentralized Autonomous Organizations, by Samuel D. Brunson (Loyola-Chicago; Google Scholar)
  4. [146 Downloads]  The Abandonment of International College Athletes by NIL Policy, by Victoria Haneman (Creighton; Google Scholar) & David Weber (Creighton; Google Scholar)
  5. [102 Downloads]  International Tax Reform: Challenges to Multilateral Cooperation, by Assaf Harpaz (Drexel; Google Scholar)

September 18, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, September 17, 2022

Crawford & Afield: Reimagining The Tax System Through The Work Of Dorothy Day

Bridget J. Crawford (Pace; Google Scholar) & W. Edward "Ted" Afield (Georgia State; Google Scholar), Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day, 76 Tax L. Rev. ___ (2023):

NYU (2023)When is the nonpayment of taxes justified by conscientious objections? Legendary Catholic social activist Dorothy Day refused to pay federal income taxes, because she was an avowed pacifist who also cautioned against government overreach into the lives of citizens. This article asks whether the tax system should accommodate those who have moral objections, and if so, how accomplish that. Through the lens of Dorothy Day, who devoted her adult life to workers’ rights, pacificism, and service to the poor, this article makes three contributions to the conversation about the administration of a fair tax system.

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September 17, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Friday, September 16, 2022

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Doran’s Executive Compensation And Corporate Governance

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Michael Doran (Virginia; Google Scholar), Executive Compensation and Corporate Governance (Aug. 25, 2022).

Sloan-speck

Some say that the definition of insanity is doing the same thing repeatedly and expecting different results. In Executive Compensation and Corporate Governance, Michael Doran illustrates Congress’s tendency to meet this definition, especially in policy areas that implicate big business. Doran starts from the observation that, while significant empirical uncertainty exists as to whether lavish executive compensation reveals a breakdown of corporate governance, Congress’s extensive deployments of tax policy to curtail executive pay generally have fared poorly. Indeed, Doran argues that these legislative efforts, which span four decades, may have harmed shareholders and workers—the precise constituencies that Congress intended to protect.

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September 16, 2022 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week’s Tax Workshops

Tax Workshops (Big)Monday, September 19: Kathleen Delaney Thomas (North Carolina; Google Scholar) will present Fake News and the Tax Law (with Erin Scharff (Arizona State)) as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please RSVP here

Tuesday, September 20: Jeremy Bearer-Friend (George Washington; Google Scholar) will present Poll Taxes, Revisited as part of the UC-Hastings Tax Speaker Series. If you would like to attend, please contact Heather Field.

Friday, September 23: James R. Repetti (Boston College; Google Scholar) will present International Tax Policy, Manufacturing, and U.S. National Interests as part of the Florida Tax Policy Colloquium. If you would like to attend, please contact Charlene Luke.

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September 16, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Thursday, September 15, 2022

Blank & Osofsky: Simplicity Lost

Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), Simplicity Lost, 20 U. Pitt. Tax Rev. __ (2023):

Pittsburgh Tax Review (2021)The complexity of the tax law is one of the most serious problems facing U.S. taxpayers and the tax system. Among the many costs of tax complexity are (1) billions of hours of paperwork and stress that taxpayers face each year, (2) monetary costs that taxpayers bear when they hire advisors and purchase software to report their tax liability and file their tax returns, (3) difficulty that taxpayers encounter when attempting to claim tax credits and other benefits, and (4) challenges the IRS confronts when attempting to deter tax avoidance and evasion opportunities that tax complexity often creates.

This Article explores an often-overlooked moment in time in which Congress seemed to embrace an alternative—tax simplification—as a real possibility, as part of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 98). 

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September 15, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Walker: Tax Complexity And Technology

David I. Walker (Boston University; Google Scholar), Tax Complexity And Technology, 97 Ind. L.J. 1095 (2022):

Indiana-law-journalThe Federal Income Tax Code has become increasingly complex over time with the implication that many taxpayers no longer understand the connection between their life decisions and their taxes. Some commentators have suggested that increasing computational complexity may be attributable in part to the proliferation of tax preparation software that renders such complexity manageable at filing time, but otherwise does nothing to mitigate the “black box” nature of the tax system. While such complexity and opacity undercut explicit incentives embedded in the Code, make planning more difficult, and undermine political accountability for taxes, they may also reduce the inefficient distortion or deadweight loss of the income tax, particularly with respect to higher-income taxpayers.

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September 15, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, September 14, 2022

Griffith & Staudt: Taxing Guns

Thomas Griffith (USC) & Nancy Staudt (Dean, Pardee RAND Graduate School; Vice President of Innovation, RAND Corporation), Taxing Guns, 95 S. Cal. L. Rev. 73 (2021): 

Southern-california-law-reviewPolicymakers across the nation have recently adopted new taxes on guns. As expected, these policies are controversial. Supporters believe the taxes will increase the cost of weapons, decrease sales, and provide the revenue necessary to fund the costs of gun violence across America. Critics, by contrast, argue the taxes are nothing more than poll taxes and will drive the market for weapons underground.

Lost in the debate is the fact that gun taxes have been on the books for over a century. Congress adopted the first of such taxes during World War I to address the nation’s extraordinary wartime revenue needs. Since then, policymakers at every level of government have added more taxes, creating a capacious system of modern gun taxation in the process.

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September 14, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Knoll & Mason: Bibb Balancing

Michael S. Knoll (Penn) & Ruth Mason (Virginia; Google Scholar), Bibb Balancing, 91 Geo. Wash. L. Rev. __ (2023):

George-washington-law-reviewCourts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation and those of other states.

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September 14, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

McMahon: Taxing Prison Work

Stephanie Hunter McMahon (Cincinnati), Prison Work Is Taxing and Should Be Taxed, 176 Tax Notes Fed. 1585 (Sept. 5, 2022):

Tax Notes Federal (2022)In this article, McMahon advocates for Congress to enact when possible, and otherwise to push for, an expansion of the social safety net for prison labor on terms consistent with that for non-incarcerated workers, taking into account the prison context.

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September 14, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Tuesday, September 13, 2022

Gale Presents Rethinking The Corporate Income Tax: The Role Of Rent Sharing Today At NYU

William Gale (Brookings Institution; Google Scholar) presents Rethinking the Corporate Income Tax: The Role of Rent Sharing (with Samuel Thorpe (Brookings Institution)) at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

William-galeStandard analysis of the corporate income tax assumes shareholders bear the burden of taxes on excess returns. But evidence shows that firms share rents with workers, especially high-income workers, which implies that these workers bear some of the burden as well. Using the Tax Policy Center microsimulation model, we show that, relative to standard assumptions, allowing for rent sharing with high-income workers consistent with recent studies changes the incidence of the tax—labor bears more of the burden—but the tax remains highly progressive. We discuss several implications of the results and directions for future research.

Conclusion
Our goal in this paper is to incorporate insights from the literature on rent sharing between firms and workers into analysis of the incidence and distributional effects of the corporate income tax. The essence of our argument is simple: excess returns account for a significant and rising share of the corporate tax base and firms tend to share excess returns with workers–predominantly but not completely with their high-income workers. Together, these facts imply that standard public finance analyses that allocate all the burden of taxes on excess returns to shareholders are inconsistent with important features of the real world.

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September 13, 2022 in Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Schaffa: The Intergenerational Equity Case For A Wealth Tax

Daniel Schaffa (Richmond), The Intergenerational Equity Case For A Wealth Tax, 90 U. Cin. L. Rev. 735 (2022):

Intergenerational equity is commonly set aside in favor of other policy objectives, perhaps because of the extreme challenges inherent in adopting and applying an intergenerational equity normative framework. Even when there is a near consensus that the choices of today will have substantial costs in the future, these costs are often downplayed or disregarded. This Article asks whether there are measures that might offer redress to a generation for the costs imposed on it by its predecessors and finds that a one-time wealth tax is a promising option. Although its analysis applies more generally, this Article focuses on the widely understood intergenerational consequences of unsustainable deficits. While there is little evidence to suggest that the U.S. government’s current debt is near a crisis level, there is widespread concern about the pace at which the debt is growing. Eventually the rate at which the U.S. borrows must slow. 

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September 13, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Avi-Yonah: Medtronic II And The Profit-Shifting Problem

Reuven S. Avi-Yonah (Michigan; Google Scholar), Medtronic II and the Profit-Shifting Problem, 176 Tax Notes Fed. 1575 (Sept. 5, 2022):

Tax Notes Federal (2022)In this article, Avi-Yonah looks at the Tax Court’s recent Medtronic II [v. Commissioner, T.C. Memo. 2022-84 (Aug. 18, 2022)] decision and considers how the new corporate alternative minimum tax may provide a solution to the problem of adjudicating transfer pricing in the absence of comparables.

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September 13, 2022 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Monday, September 12, 2022

Lleras-Muney Presents Children And The US Social Safety Net: Balancing Disincentives For Adults And Benefits For Children Today At Loyola-L.A.

Adriana Lleras-Muney (UCLA; Google Scholar) presents Children and the US Social Safety Net: Balancing Disincentives for Adults and Benefits for Children (with Anna Aizer (Brown; Google Scholar) & Hilary Williamson Hoynes (UC-Berkeley; Google Scholar)) at Loyola L.A. today as part of its Tax Policy Colloquium hosted by Theodore Seto:

PhotoEconomic research on the safety net has evolved significantly over time, moving away from a near exclusive focus on the negative incentive effects of means-tested assistance on employment, earnings, marriage and fertility to include examination of the potential positive benefits of such programs to children. Initially, this research on benefits to children focused on short run impacts, but as we accumulated knowledge about skill production and better data became available, the research evolved further to include important long run economic outcomes such as employment, earnings and mortality. Once the positive long-run benefits to children are considered, many safety net programs are cost-effective.

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September 12, 2022 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Lesson From The Tax Court: The Finality Of Closing Agreements

Camp (2021)Section 7121 authorizes the IRS to enter into “an agreement in writing” with taxpayers “in respect of any internal revenue tax for any taxable period.”  Such agreements are called “Closing Agreements.”  As implied by that name, the big idea here is that such agreements are meant to “close” a particular tax issue or a particular tax year or years.  Accordingly, the general rule is that such agreements are final: they “close” the ability of either the IRS or the taxpayer to later assert a different position with respect to the matters covered in the Closing Agreement.

In Cory H. Smith v. Commissioner, 159 T.C. No. 3 (Aug. 25, 2022) (Judge Toro), the Tax Court teaches a lesson on that finality rule.  There, the taxpayer had signed a Closing Agreement for multiple years promising not to claim the §911 exclusion for foreign earned income.  He then reneged by filing amended returns (for some years) and original returns (for other years), breaking that promise.  Even though the opinion is a 43-page precedential opinion, the lesson is relatively simple: Closing Agreements are final; one must be very careful when signing one because final means final.

What is also interesting (at least to me) is why the Tax Court may have taken extra effort to hammer on the finality rule and issue this opinion as a T.C. opinion.  It seems Mr. Smith did not act alone.  He appears to have received some dubious advice from his tax return preparer, an Enrolled Agent (EA) who awkwardly styles himself as “Dr.” Castro.  Op. at 16, note 20.  That EA seems to have also given the same bum advice to a bunch of other taxpayers.  The Court notes that “at least 19 other cases pending in our Court involve the same issue as the one presented here.”  Op. at 11, note 14.  So making this first-out opinion a precedential opinion should help to efficiently dispose of all the rest.  The Court makes the effort to note that all 19 of the other cases involve this same EA.  This leads to some thoughts about potential §6694 penalties.

Details below the fold.

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September 12, 2022 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (2)

Sunday, September 11, 2022

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 and some reshuffling of the order within the Top 5:

  1. SSRN Logo (2018)[281 Downloads]  The Passthrough Entity Tax Scandal, by Daniel Hemel (NYU; Google Scholar) (reviewed by David Elkins (Netanya; visiting NYU 2021-23; Google Scholar) here)
  2. [128 Downloads]  The Abandonment of International College Athletes by NIL Policy, by Victoria Haneman (Creighton; Google Scholar) & David Weber (Creighton; Google Scholar)
  3. [124 Downloads]  A Brief History of U.S. Approaches to Corporate Tax Integration and Some Lessons, by George Yin (Virginia)
  4. [105 Downloads]  Out of Time? APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period, by Susan Morse (Texas; Google Scholar)
  5. [102 Downloads]  International Tax Reform: Challenges to Multilateral Cooperation, by Assaf Harpaz (Drexel; Google Scholar)

September 11, 2022 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Friday, September 9, 2022

Weekly SSRN Tax Article Review And Roundup: Saito Reviews Holderness’s Individual Home-Work Assignments For State Taxes

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Hayes Holderness (Richmond), Individual Home-Work Assignments for State Taxes, 98 Wash. L. Rev. ___ (2023).

Saito-blaine-800x800-1

The COVID-19 pandemic pushed much of work online. But this move to greater remote work raises issues for state taxation of that labor income. In his piece Individual Home-Work Assignments for State Taxes, Hayes Holderness makes a convincing case that the dominant view that the employees’ residency jurisdiction should be the only one able to tax this labor income is misguided. The result is a thoughtful and forceful argument that the states where the employer is located should be allowed to tax remote work income.

Holderness first notes that the Constitution allows the employer’s state, the source state, to tax the income even in a remote work situation. He further argues that it is unlikely that the Supreme Court is going to reverse course and limit source states’ rights to tax this income.

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September 9, 2022 in Blaine Saito, Scholarship, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Next Week’s Tax Workshops

Tax Workshops (Big)Monday, September 12: Adriana Lleras-Muney (UCLA; Google Scholar) will present Children and the Us Social Safety Net: Balancing Disincentives for Adults and Benefits for Children (with Anna Aizer (Brown; Google Scholar) & Hilary Williamson Hoynes (UC-Berkeley; Google Scholar)) as part of the Loyola-L.A. Tax Policy Colloquium. If you would like to attend, please RSVP here

Tuesday, September 13: William Gale (Brookings Institution; Google Scholar) will present Rethinking the Corporate Income Tax: The Role of Rent Sharing (with Samuel Thorpe (Brookings Institution)) as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro

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September 9, 2022 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Gondwe: The Tax-Invisible Labor Program—Care, Work, Kinship, And Income Security Programs In The IRC

Nyamagaga Gondwe (Wisconsin), The Tax-Invisible Labor Program: Care, Work, Kinship, and Income Security Programs in the IRC, 102 B.U. L. Rev. __ (2022):

Boston University Law Review (2022)Since the mid-1990s, American financial assistance programs have increasingly shifted to require evidence of labor market participation as a criteria for eligibility. This shift signals a change from previous welfare programs that were distributed principally based on unmet material need. The shift from need-based to income-tested income security programs has been lauded for increasing labor force participation. But in this shift, income security programs have failed to account for the labor of non-market care workers. These care workers, whose household production is a fundamental component of market life, experience both economic insolvency and tax-invisibility in the face of assistance systems that do not recognize care work as eligible labor. Because care work disproportionately falls to women in American homes, income-tested financial assistance programs place an outsized strain women's economic lives.

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September 9, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Thursday, September 8, 2022

Kim & Shanske: State Digital Services Taxes—A Good And Permissible Idea

Young Ran (Christine) Kim (Cardozo; Google Scholar) & Darien Shanske (UC-Davis; Google Scholar), State Digital Services Taxes: A Good and Permissible Idea (Despite What You Might Have Heard), 98 Notre Dame L. Rev. __ (2022):

Notre Dame Law ReviewTax systems have been struggling to adapt to the digitalization of the economy. At the center of the struggles is taxing digital platforms, such as Google or Facebook. These immensely profitable firms have a business model that gives away "free" services, such as searching the web. The service is not really free; it is paid for by having the users watch ads and tender data. Traditional tax systems are not designed to tax such barter transactions, leaving a gap in taxation.

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September 8, 2022 in Scholarship, Tax, Tax Scholarship | Permalink

Blank & Osofsky: Redesigning Automated Legal Guidance

Joshua Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), Redesigning Automated Legal Guidance, The Regulatory Review (Sept. 6, 2022):

Regulatory ReviewFederal agencies perform many functions and responsibilities. One of these functions is to help members of the public understand and apply the law. Increasingly, agencies provide this aid using automated legal guidance tools, such as chatbots, virtual assistants, and other automated systems.

For instance, when individuals have questions about their immigration status, they can turn to Emma, the U.S. Citizenship and Immigration Services’s computer-generated virtual assistant. When they have questions about their student loans, they can ask Aidan, the U.S. Department of Education’s virtual assistant that answers questions about federal student aid. And when they have questions about how personal and business activities affect their U.S. federal tax liability, they can consult with the Internal Revenue Service’s Interactive Tax Assistant to answer taxpayers’ personal tax questions.

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September 8, 2022 in Scholarship, Tax, Tax Scholarship | Permalink