Paul L. Caron
Dean


Friday, July 26, 2019

Kysar: Dynamic Legislation

Rebecca M. Kysar (Fordham), Dynamic Legislation, 167 U. Pa. L. Rev. 809 (2018):

To overcome congressional gridlock, lawmakers have developed devices that, under certain conditions, provide easier paths to policy change. Procedural mechanisms may eliminate the threat of filibuster and other barriers to legislating. Laws may prompt Congress to act through sunset dates, penalties like sequestration, or other undesirable policy outcomes. Alternatively, the legislative product itself may spontaneously update without further action by Congress, a category I label “dynamic legislation.” For instance, during consideration of recent tax legislation, lawmakers proposed that certain tax cuts be automatically ratcheted down if the bill failed to generate sufficient economic growth and that delayed tax increases not go into effect if revenue hurdles were met.

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July 26, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Trump Was Right: Endowment Tax On Wealth Accumulation At Elite Colleges Will Curb Inequality

Mae C. Quinn (Florida), Wealth Accumulation at Elite Colleges, Endowment Taxation, and the Unlikely Story of How Donald Trump Got One Thing Right, 54 Wake Forest L. Rev. 451 (2019):

President Donald Trump has declared war on immigrants, diversity, and those who dare to dissent. Rooted in resentments about who people are, where they were born, and what they believe, these executive-led assaults are dangerous developments in the modern era. However, in the course of Trump's many retrograde tirades, he has somehow managed to get one thing right—too many elite private colleges in the United States, considered nonprofit entities, have amassed way too much wealth.

This Article recounts this unlikely story, including how the Trump Administration's 2017 endowment tax could work to advance diversity. The new endowment tax penalizes private colleges for stockpiling assets. In response, potentially impacted universities have argued they are victims of an unfair conservative conspiracy intended to target liberal ideology. But the data demonstrates that this is not true. And concerns about rich colleges hoarding their resources have come from both the right and the left.

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July 26, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Thursday, July 25, 2019

The Taxation Of Undocumented Immigrants

Nneka Obiokoye (Holland & Hart, Denver), Taxation of Undocumented Immigrants: The Uneasy Connection Between Regulating the Undocumented Immigrant and Fostering Illegal Activity, 2 J. Bus. Entrepreneurship & L. 359 (2018):

The volume of illegal immigration to the United States has been a raging issue in recent years, posing a significant issue for debates during the 2016 presidential election and an important policy concern for the Trump administration. Indeed, this issue was arguably the strongest point of contention among the 2016 presidential candidates and may have largely influenced the results of that election. While the recent increase in terrorist activity accounts for some of the controversy, a large part of the problem is that the average American believes that undocumented immigrants have a parasitical effect on the economy. In other words, they believe that immigrants take away from socio-economic infrastructure—such as welfare, health care, and education benefits—without contributing to society. Factual evidence tends to suggest otherwise, as statistics show that undocumented immigrants do, in fact, contribute a significant amount of federal and state revenue in taxes.

This article seeks to correct some of the negative perceptions held by the general public pertaining to undocumented immigrants, by drawing attention to four major points.

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July 25, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Financial Innovation, Tax Law, And The Making Of The Contemporary Art Market

Michael W. Maizels (Harvard metaLAB) & William E. Foster (Arkansas), The Gallerist’s Gambit: Financial Innovation, Tax Law, and the Making of the Contemporary Art Market, 42 Colum. J.L. & Arts 479 (2019):

This essay presents an account of an important moment in the emergence of the market for Pop art that was facilitated in part by a distinctly accommodating legal environment. Although Abstract Expressionism is commonly credited with causing American art’s ascendance onto the world stage immediately after World War II, its international acclaim belied a precarious institutional and financial infrastructure for living American painters. It was only with the following generation of Pop and Minimalist artists that the United States developed a self-sustaining market for the work of contemporary American artists. A significant but largely overlooked factor in that continued success was the ability of art dealers to take advantage of the unique legal and regulatory environment of the 1960s. This essay focuses on the efforts of an enterprising art gallerist, Leo Castelli, to aggressively promote his stable of Pop artists through the development of several financial structures, including some designed to leverage the relatively generous income tax deductions and anemic enforcement regime of the time. In doing so, Castelli not only seeded the ground for the international ascendance of American visual art, but also engineered financial arrangements that fostered the development of a lucrative and resilient art market that endures to this day.

With the aim to provide insights into both the legal-political and the art historical registers, this essay describes a tax law framework that provides a key piece missing from the art historical puzzle. While historians have treated the explosion of the market for American contemporary art as a natural consequence of postwar American economic ascendance, insufficient attention has been paid to how this economic energy was channeled into the art market in the first place. Stated differently, Americans were newly flush with cash, but why did they start buying art with it?

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July 25, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, July 24, 2019

Cross Border State Sales And Use Taxation After South Dakota v. Wayfair: A New Paradigm For E-Commerce

Norman S. Newmark, Rochelle F. Walk & Robert V. Willeford Jr., Cross Border State Sales and Use Taxation After South Dakota v. Wayfair: A New Paradigm for E-Commerce, 3 Bus. Entrepreneurship & Tax L. Rev. 16 (2019):

For over 50 years, U.S. Supreme Court Precedents held that state sales taxes could not be constitutionally applied against retailers with no physical presence in the taxing states. As a result, many states implemented use tax laws, essentially requiring each resident consumer to self-report and pay taxes on purchases made out of state retailers. However, these use tax laws were largerly ignored. Moreover, with the advent of online retail ("e-tailers") had no physical nexus to the states in which the products were delivered.

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July 24, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  This ranking includes downloads from two 30- and 35-page papers by 12 tax professors on the new tax legislation that garnered a lot of media attention (including the New York Times and Washington Post) and generated a massive amount of downloads (the papers are the most downloaded tax papers of all-time by over 200%).  See Brian Leiter (Chicago), 11 Tax Profs Blow Up The SSRN Download Rankings. (For some reason, Mitchell Kane (NYU) — the twelfth academic co-author of the two papers — is not included in the SSRN download rankings (although the downloads are included on his individual author page)).  Here is the new list (through July 1, 2019) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

    All-Time   Recent
Reuven Avi-Yonah (Michigan)  184,418 Reuven Avi-Yonah (Michigan) 16,885
Dan Shaviro (NYU) 118,651 Daniel Hemel (Chicago) 14,545
David Gamage (Indiana-Bl.) 114,176 Darien Shanske (UC-Davis)  12,097
Daniel Hemel (Chicago) 112,722 David Gamage (Indiana-Bl.) 11,916
Lily Batchelder (NYU) 111,787 Dan Shaviro (NYU) 11,805
Darien Shanske (UC-Davis) 108,323 Manoj Viswanathan (UC-Hastings) 11,224
Cliff Fleming (BYU) 103,496 David Kamin (NYU) 10,780
8 David Kamin (NYU) 100,391 Ari Glogower (Ohio State) 10,703
9 Manoj Viswanathan (UC-Hastings) 100,353 Lily Batchelder (NYU) 10,468
10  Rebecca Kysar (Fordham) 99,493 Cliff Fleming (BYU) 10,229
11  Ari Glogower (Ohio State) 98,273 Rebecca Kysar (Fordham)  10,117
12  Michael Simkovic (USC) 43,116 Richard Ainsworth (BU) 2,813
13  D. Dharmapala (Chicago) 37,023 Michael Simkovic (USC) 2,788
14  Paul Caron (Pepperdine) 35,564 Brad Borden (Brooklyn) 2,558
15  Louis Kaplow (Harvard) 31,720 Kyle Rozema (Chicago) 2,493
16  Richard Ainsworth (BU) 27,750 Bridget Crawford (Pace) 2,430
17  Ed Kleinbard (USC) 25,914 D. Dharmapala (Chicago) 2,350
18  Vic Fleischer (UC-Irvine) 25,506 Ruth Mason (Virginia) 2,252
19  Jim Hines (Michigan) 24,491 Jacob Goldin (Stanford) 2,198
20  Gladriel Shobe (BYU) 23,991 Robert Sitkoff (Harvard) 1,903
21  Ted Seto (Loyola-L.A.) 23,498 Joe Bankman (Stanford) 1,864
22  Richard Kaplan (Illinois) 23,438 Hugh Ault (Boston College) 1,856
23  Brad Borden (Brooklyn) 22,781 Louis Kaplow (Harvard) 1,777
24  Robert Sitkoff (Harvard) 22,461 George Yin (Virginia) 1,676
25  Katie Pratt (Loyola-L.A.) 22,205 Yariv Brauner (Florida) 1,608

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July 24, 2019 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Rankings, Tax Scholarship | Permalink | Comments (0)

The Tax Treatment Of Cryptocurrency Hard Forks

Danhui Xu (J.D. 2020, Fordham), Free Money, But Not Tax-Free: A Proposal for the Tax Treatment of Cryptocurrency Hard Forks, 87 Fordham L. Rev. 2693 (2019):

Cryptocurrency has attracted extraordinary attention as one of the greatest financial innovations in recent years. Equally noticeable are the increasingly frequent cryptocurrency events, such as hard forks. Put simply, a cryptocurrency hard fork happens when a single cryptocurrency splits in two, which results in original coin owners receiving free forked coins. Such hard forks have resulted in billions of dollars distributed to U.S. taxpayers. Despite ongoing regulatory efforts, to date, the Internal Revenue Service (IRS) has yet to take a clear position on the tax treatment of cryptocurrency hard forks. The lack of useful guidance when filing tax returns has left taxpayers genuinely confused in the past few years.

To fill this regulatory gap, this Note proposes a framework for cryptocurrency hard fork taxation.

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July 24, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Tuesday, July 23, 2019

Kysar: Unravelling The Tax Treaty

Rebecca Kysar (Fordham), Unravelling the Tax Treaty, 103 Minn. L. Rev. ___ (2019):

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.

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July 23, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Borden: Investing Section 1231 Gain In Qualified Opportunity Zones

Bradley T. Borden (Brooklyn), Investing Section 1231 Gain in Qualified Opportunity Zones, 35 Tax Mgmt. Real Est. J. 7 (2019):

This article critiques the net section 1231 gain provision in the latest round of proposed regulations issued under the qualified opportunity fund statute. That net section 1231 gain provision provides that taxpayers can only invest net section 1231 gain for a taxable year in a QOF beginning on December 31 of the taxable year during which the section 1231 gain is realized. The article shows how the net section 1231 gain provision is unfair, of questionable validity, and inconsistent with other nonrecognition provisions. These problems stem largely from Treasury’s definition of eligible gain, which includes only capital gains.

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July 23, 2019 in Tax, Tax Scholarship | Permalink | Comments (0)

Monday, July 22, 2019

Shobe Presents The Substance Over Form Doctrine And The Up-C At The IRS

Gladriel Shobe (BYU) presented The Substance Over Form Doctrine and the Up-C, 38 Va. Tax Rev. 249 (2018), to the Passthrough and Special Industries Group in the IRS Chief Counsel's Office on Friday in Washington, D.C.:

Shobe (2018)The Up-C is an increasingly popular form of IPO that generates significant tax benefits as compared to a traditional IPO. These tax benefits, which are the driving force behind the Up-C, have generally gone uncontested and are achieved by taking a form over substance approach to the Up-C for tax purposes. Governmental officials had never directly addressed the Up-C until recently when the SEC issued an interpretive letter (the Up-C Letter) condoning a substance over form approach to the Up-C for purposes of SEC Rule 144. As a result of the Up-C Letter, owners in an Up-C get the best of both worlds by inconsistently taking a form over substance approach for tax purposes and a substance over form approach for securities law purposes.

This Article analyzes whether this disparate treatment of the Up-C is justified from either a technical or policy perspective.

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July 22, 2019 in Colloquia, IRS News, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Lesson From The Tax Court: The Role Of Abuse In Spousal Relief Claims

Tax Court (2017)Divorce brings all kinds of consequences.  Today’s lesson is about one of the tax consequences.  In last week's case of Brigette Ogden v. Commissioner, T.C. Memo. 2019-88  (July 15, 2019) (Judge Halpern), the divorced taxpayer sought to be relieved of her obligation to pay tax reported on two prior joint returns.  She sought relief based in part on a claim of spousal abuse and a claim that a state court’s divorce decree absolved her of responsibility.  Judge Halpern’s opinion teaches lessons about: (1) the relationship of spousal abuse to spousal relief in §6015, (2) the relationship of state courts to federal tax law, and (3) the relationship of sub-regulatory IRS guidance---here a Revenue Procedure---to Tax Court review of an IRS decision about spousal relief.  Details below the fold.  It's all about relationships.

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July 22, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (2)

Sunday, July 21, 2019

How The 2017 Tax Cuts And Jobs Act Favors The For‐Profit Hospital Model

Elizabeth King (Davis Polk & Wardwell, New York), Tax Reform, Mixed‐Entity Markets, and Hospitals: How the 2017 Tax Cuts and Jobs Act Favors the For‐Profit Hospital Model, 37 Yale L. & Pol'y Rev. 527 (2019):

When the U.S. Congress passed the Tax Cuts and Jobs Act in 2017 (the “TCJA”), it achieved a significant tax cut for corporations. In doing so, however, Congress simultaneously reshaped the landscape for mixed‐ entity markets—that is, industries like healthcare and education in which nonprofit, for‐profit, and government entities coexist and compete. This is particularly true for the hospital market in which the TCJA’s provisions have subtly but decidedly tilted market conditions towards a for‐profit hospital model.

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July 21, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

The Top Five New Tax Papers

SSRN Logo (2018)There is quite 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 #4 and #5:

  1. [487 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  2. [229 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  3. [190 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  4. [128 Downloads]  Fixing the Five Flaws of the Tax Cuts and Jobs Act, by Kimberly Clausing (Reed College)
  5. [106 Downloads]  Back to Basics: Rethinking Normative Principles in International Tax, by Shay Shimon Moyal (S.J.D. 2020, Michigan)

July 21, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Saturday, July 20, 2019

Is Tax Planning Best Done In Private?

Jeffrey L. Hoopes (North Carolina), Patrick Langetieg (Taxpayer Behavior Lab, IRS), Edward L. Maydew (North Carolina) & Michele Mullaney (North Carolina), Is Tax Planning Best Done In Private?:

We investigate whether privately-held firms engage in more tax planning than do publicly-held firms. Private firms are commonly believed to face lower non-tax costs of tax planning relative to public firms, allowing them to engage in more tax planning. However, empirical evidence of U.S. private firm tax planning is limited, primarily because of difficulty in obtaining private firm data. We make use of detailed administrative data from the Internal Revenue Service, which cover virtually all U.S. public and private firms and allow us to examine a variety of specific tax planning measures. Contrary to conventional wisdom, we find no evidence that private corporations engage in more tax planning relative to similar-sized public corporations in the same industry. Moreover, some evidence suggests that private firms actually engage in less tax planning.

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July 20, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Friday, July 19, 2019

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Nagato's Tax Consequences Of The Fukushima Nuclear Disaster

This week, Sloan Speck (Colorado) reviews a new work by Takayuki Nagato (Gakushuin University, Faculty of Law), Tax Losses and Excessive Risk Taking Under Limited Liability: A Case Study of the TEPCO Bailout After the Fukushima Nuclear Disaster, 32 Colum. J. Asian L. 137 (2019).

Speck (2017)On March 11, 2011, an earthquake and subsequent tsunami devastated the Fukushima Dai-ichi nuclear power plant, which lies roughly 150 miles north of Tokyo on Japan’s eastern coast. The Fukushima nuclear disaster caused tremendous and far-reaching economic—and, of course, personal—losses. By statute, the operator of the Fukushima plant, Tokyo Electric Power Company Holdings (TEPCO), was held strictly liable for approximately $80 billion of damages that stemmed from the disaster. In a compelling recent article, Takayuki Nagato explores the tax consequences of TEPCO’s damage payments as a vehicle to interrogate the treatment of tax losses and risk-taking more generally. Nagato’s excellent and engaging analysis also adds a parallel strand to scholarly conversations about taxation’s direct and indirect role in disaster relief, as well as current commentaries on Pacific Gas & Electric’s wildfire-driven bankruptcy.

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July 19, 2019 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

Avi-Yonah Posts Tax Papers On SSRN

Behavioral Biases and Political Actors: Three Examples from US International Taxation (with Kaijie Wu):
The literature on behavioral public finance has tended to focus on the biases of taxpayers. However, politicians and government agents are human as well and can be expected to show the same biases that we are all subject to. This chapter will examine three examples of availability heuristic arguably influencing political actors and the unintended consequences of their reactions. The examples are all from US international tax rules: the foreign investment in real property tax act (FIRPTA) (1980), the exit tax on US citizens who expatriate (2008) and the enforcement of withholding tax on dividend equivalents (2010).

A Break in the Dam? India’s New Profit Attribution Proposal and the Arm’s Length Standard (with Ajitesh Kir):
On April 18, 2019, the Indian Central Board of Direct Taxes released a public consultation document on amending India’s rules for profit attribution to permanent establishments. This remarkable document is the first time a national government has proposed what in essence amounts to an abandonment of the arm’s length standard (ALS), the governing standard in transfer pricing for over 80 years, in favor of a formulary system. Given that the OECD has also raised the option of using formulas to allocate profits to market jurisdictions, India’s unilateral move may signal the proverbial break in the ALS dam, with the potential of leading to an abandonment of the ALS in favor of a unitary tax system.

Stanley Surrey, the Code and the Regime (with Nir Fishbien and Gianluca Mazzoni):

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July 19, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Thursday, July 18, 2019

Cauble: Taxing Selling Partners

Emily Cauble (DePaul), Taxing Selling Partners, 94 Wash. L. Rev. 1 (2019) (reviewed by Sloan Speck  (Colorado) here):

Under current law, when a partner sells a partnership interest, the resulting gain or loss is treated as capital gain or loss, except to the extent that the partnership holds certain items whose sale would result in gain or loss that was not capital. The purpose of the current regime appears to be to prevent taxpayers from obtaining more favorable treatment by selling an interest in a partnership than what would result if the partnership were to sell its underlying assets. Given this apparent aim of legislators, current law produces results for taxpayers that are both unduly favorable and unduly unfavorable. In particular, despite current law’s aim to equate the tax treatment of the sale of a partnership interest with the tax treatment of the sale of underlying assets (at least with respect to the character of income recognized), differences persist. Sometimes sale of a partnership interest produces more favorable tax treatment than the sale of underlying assets. Other times, sale of a partnership interest triggers less favorable tax treatment than a sale of underlying assets.

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July 18, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Minimal IRS Guidance Is Sufficient To Navigate § 1400Z Opportunity Zones

Riley Coy, Good Enough: How Minimal IRS Guidance is Sufficient to Navigate §1400Z Opportunity Zones, 3 J. Bus. Entrepreneurship & L. 1 (2019):

Z, as part of the Tax Cuts and Jobs Act, creates “Opportunity Zones” which provide investors with a tax incentive to invest their realized capital gains in certain distressed neighborhoods. The goal of this subchapter is the economic growth of these communities. As described below, the language of subchapter Z is subject to interpretation in certain respects. Subsequently, the IRS issued a proposed regulation to provide guidance and clarity to the ambiguities within the language. Although many issues still remain unresolved, the guidance provided is a significant step in the right direction.

July 18, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Manolakas: The Tax Law And Policy Of Natural Disasters

Christine Manolakas (McGeorge), The Tax Law and Policy of Natural Disasters, 71 Baylor Law Rev. 1 (2019):

Natural disasters result in untold human suffering and economic loss. In addition to possible physical injury and loss of life, the futures of the individuals involved are forever altered. Homes and neighborhoods are destroyed, families and communities are dislocated, and jobs and businesses are jeopardized. Unconscionably, Tax Cuts and Jobs Act of 2017 further diminished the already inadequate tax relief available for the damage or destruction of personal-use property caused by casualty events. Following a general discussion of the tax laws applicable to casualty losses, including changes made by the Tax Cuts and Jobs Act of 2017, this article surveys the permanent tax relief provisions available to the victims of all natural disasters and the additional permanent tax relief provisions available only to the victims of Federally declared disasters.

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July 18, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Christians & van Apeldoorn: The OECD Inclusive Framework

Allison Christians (McGill) & Laurens van Apeldoorn (Leiden), The OECD Inclusive Framework:

OECDNations across the world are engaged in an ambitious project of tax cooperation that contemplates all participating nations included on an equal footing to implement and further develop mutually agreed baseline rules. The forum for this vision of equal participation in international tax policymaking is the Inclusive Framework, an inter-governmental network convened by the Organisation for Economic Cooperation and Development. This paper demonstrates that the design and build-out of the Inclusive Framework demonstrates institutional learning about the need for inclusivity in authenticating a global tax policy mandate, and that achieving stated goals will be challenging in both logistical and geo-political terms.

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July 18, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Wednesday, July 17, 2019

Expanding OIRA Review To The IRS

Bridget C.E. Dooling (George Washington), Expanding OIRA Review to IRS, 3 J. Bus. Entrepreneurship & L. ___ (2019):

Executive Order 12866 describes U.S. policy on regulatory planning and review. It directs agencies to identify the nature and significance of the problem they are trying to solve with regulation, to identify alternative solutions, to assess the quantifiable and non-quantifiable costs and benefits of each alternative, and then to choose the option that maximizes net benefits to society, taking into account distributional effects and other considerations. That policy, which has governed U.S. regulation for several decades, is managed by the Office of Information and Regulatory Affairs (OIRA). It is also subject to several exemptions. In April 2018, the U.S. Department of Treasury and the Office of Management and Budget signed a historic memorandum of agreement (MOA) narrowing one of those exemptions. The MOA expands the number of Internal Revenue Service (IRS) regulatory actions for which IRS must comply with EO 12866. This action moved tax rules out of the “presidential tax-policy blind spot” as described by Professor Clint Wallace [Centralized Review of Tax Regulations, 70 Ala. L. Rev. 455, 460 (2018)].

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July 17, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Tuesday, July 16, 2019

Rethinking Normative Principles In International Tax

Shay Shimon Moyal (S.J.D. 2020, Michigan), Back to Basics: Rethinking Normative Principles in International Tax, 73 Tax Law. ___ (2019):

ABA Tax LawyerInternational Tax is a relatively new legal system that lacks clear objectives and principles. These principles, which guide unilateral legislation and multilateral coordination, have not been discussed thoroughly through the lenses of jurisprudence and legal philosophy. This paper offers a unique jurisprudential analysis of normative International Tax principles by redefining them and clarifying several basic assumptions.

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July 16, 2019 in ABA Tax Section, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Min & Kim: Dual-Class Stock And Corporate Spin-offs

Geeyoung Min (Columbia) & Young Ran (Christine) Kim (Utah), Insulation by Separation: When Dual-Class Stock Met Corporate Spin-offs, 9 UC Irvine L. Rev. ___ (2019):

The recent rise of shareholder engagement has revamped companies’ corporate governance structures so as to empower shareholder rights and to constrain managerial opportunism. Notwithstanding the general trend, this Article uncovers corporate spin-off transactions — which divide a single company into two or more companies — as a unique mechanism that insulates the management from shareholder intervention. In a spin-off, the company’s managers can fundamentally change the governance arrangements of the new spun-off company without being subject to monitoring mechanisms, such as shareholder approval or market check. Those changes often empower managers over shareholders. Furthermore, most spin-off transactions enjoy tax benefits. The potential agency problems associated with the managers’ unilateral governance changes can be further compounded when the managers adopt multiple classes of common stock with unequal voting rights (“dual-class stock”) in the new spun-off company without shareholder approval.

This is the first Article to systematically examine the problem from both corporate and tax law perspectives and to offer possible solutions.

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July 16, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

U.S. Investment Since The Tax Cuts And Jobs Act Of 2017

Emanuel Kopp, Daniel Leigh, Susanna Mursula & Suchanan Tambunlertchai (IMF), U.S. Investment Since the Tax Cuts and Jobs Act of 2017:

There is no consensus on how strongly the Tax Cuts and Jobs Act (TCJA) has stimulated U.S. private fixed investment. Some argue that the business tax provisions spurred investment by cutting the cost of capital. Others see the TCJA primarily as a windfall for shareholders. We find that U.S. business investment since 2017 has grown strongly compared to pre-TCJA forecasts and that the overriding factor driving it has been the strength of expected aggregate demand. Investment has, so far, fallen short of predictions based on the postwar relation with tax cuts. Model simulations and firm-level data suggest that much of this weaker response reflects a lower sensitivity of investment to tax policy changes in the current environment of greater corporate market power. Economic policy uncertainty in 2018 also subdued investment growth, although to a lesser extent.

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July 16, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Monday, July 15, 2019

UC-Irvine Issues Call For Presentations: Machine Intelligence And The Changing Nature Of Tax Practice

The UC-Irvine Graduate Tax Program has issued a call for presentations at its second annual UCI/Lavar Taylor Tax Symposium on Machine Intelligence and the Changing Nature of Tax Practice on February 24, 2020:

UC Irvine (20192)The purposes of this full-day symposium is to launch an in-depth discussion on how Artificial Intelligence (AI) is changing or is expected to change the nature of tax practice. We are interested in submissions for proposed presentations on any area related to tax and AI, including any of the relevant subfields such as machine learning, neural networks, big data analytics, natural language processing, etc. The symposium will be attended by tax industry professionals, government officials, and academic researchers. We expect about 150-200 attendees this year. Presenters of accepted submissions will be invited to present at the symposium. The Graduate Tax Program will cover the presenters’ reasonable travel and lodging expenses.   

We accept submissions from:

  • Tax practitioners (in law firms, accounting firms, in-house practices, and tax preparation industry);
  • Entrepreneurs in relevant fields;
  • Government officials, tax policymakers, and tax policy advocates;
  • Academic or industry researchers.

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July 15, 2019 in Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Sunday, July 14, 2019

Should Governments Tax The Rich And Subsidize The Poor? A Comparative Study Of Muslim And Christian Respondents

Robert W. McGee (Fayetteville State University), Serkan Benk (Inonu University, Turkey) & Bahadir Yuzbasi (Inonu University, Turkey), Should Governments Tax the Rich and Subsidize the Poor? A Comparative Study of Muslim and Christian Respondents:

This study used the most recent World Values Survey dataset to determine whether Christian and Muslim views on the acceptability of taxing the rich and subsidizing the poor was an essential feature of democracy. The sample size included more than 23,000 individuals from more than 50 countries. More than a dozen socioeconomic and attitudinal variables were also examined to determine whether significant differences existed. The study found that differences in viewpoint were often significant.

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July 14, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

The Top Five New Tax Papers

SSRN Logo (2018)There is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper and a new paper debuting on the list at #4:

  1. [479 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  2. [222 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  3. [179 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  4. [150 Downloads]  Wayfair, What's Fair, and Undue Burden, by Michael Fatale (Massachusetts Department of Revenue)
  5. [138 Downloads]  The Supreme Court, Due Process and State Income Taxation of Trusts, by Bridget Crawford (Pace) & Michelle Simon (Pace)

July 14, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Friday, July 12, 2019

Big Data And Inheritance Rules In The Modern Family

Shelly Kreiczer-Levy (Emory), Big Data and the Modern Family, 2019 Wis. L. Rev. 349:

Despite numerous reforms over the years, intestate succession rules continue to privilege traditional, white, heterosexual families. It is evident that the one-size-fits-all scheme cannot truly reflect diversity of lifestyles and associations. This Article considers an innovative option that has become increasingly popular in recent years: using big data to create personalized rules, tailored to the personal characteristics of each decedent. This Article explores the promise and drawbacks of personalized intestacy, arguing that personalized default rules fall short in the realm of inheritance, because these rules are personal and inheritance law is inherently relational.

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July 12, 2019 in Tax, Tax Scholarship | Permalink | Comments (1)

Thursday, July 11, 2019

Buchanan: Tax Law Is The Lynchpin Of Civilization

Jotwell (Tax) (2016)Neil H. Buchanan (George Washington), The Law of Taxation Is the Lynchpin of Civilization (JOTWELL) (reviewing John Snape (Warwick) & Dominic de Cogan (Cambridge), Introduction: On the Significance of Revenue Cases, in Landmark Cases in Revenue Law 1 (John Snape & Dominic de Cogan eds. 2019):

John Snape and Dominic de Cogan, two legal scholars from universities in England, have provided a significant contribution to the emerging scholarly discussion in many different countries about the nature and limits of the law—not just tax law, which is their nominal domain in this chapter and book, but of all law. Without being at all polemical, and although they give a fair hearing to those with whom they disagree, they make an undeniable case for the claim that the study of tax law is ultimately the study of, to be honest, everything. ...

Snape and de Cogan’s edited volume is part of the Landmark Cases series, an analogue (which the editors readily acknowledge) to the Law Stories series in the United States that began with Tax Stories. Like its American counterpart, a Landmark Cases volume can serve as an avenue for understanding an area of the law through the study of a small canon of foundational legal decisions that continue to shape our understanding of that particular area of the law. ...

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July 11, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (7)

Wednesday, July 10, 2019

Symposium: Feminist Judgments — Rewritten Tax Opinions

Pittsburgh Tax Review (2017)The Pittsburgh Tax Review has published Symposium, Feminist Judgments: Rewritten Tax Opinions, 16 Pitt. Tax Rev. 115-208 (2019):

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July 10, 2019 in Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (1)

Ring: International Tax Reform And Improved Wealth Distribution Across The Globe

Jotwell (Tax) (2016)Diane Ring (Boston College), A Path to International Tax Reform and Improved Wealth Distribution Across the Globe (JOTWELL) (reviewing Tarcísio Diniz Magalhães (International Bureau of Fiscal Documentation), What Is Really Wrong with Global Tax Governance and How to Properly Fix It, 10 World Tax J. (2018)):

Thomas Piketty’s work brought the reality of unequal distributions of wealth into mainstream media and popular discourse. In the tax world, the conversation now regularly turns to a consideration of whether and how the international tax regime contributes to existing patterns of wealth and income distribution across nations. Certainly, the tax norms and rules that shape the basic roadmap of international tax (including source, residence and permanent establishment provisions) contribute to existing distributions of wealth—and relatedly taxable income—across jurisdictions. Why do these patterns persist? And perhaps more importantly, what would it take for change?

recent article by Tarcísio Diniz Magalhães aims to develop answers to both questions.

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July 10, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Business Tax Symposium Today At Oxford

Oxford Business Tax (2019)The Centre for Business Taxation's annual three-day summer symposium concludes today at the Saïd Business School, University of Oxford (program):

Thiess Buettner (FAU), Sales and Price Effects of Pre-announced Consumption Tax Reforms: Microlevel Evidence from European VAT (with Boryana Madzharova (FAU))
Discussant: Paul Baker (Bath)

Chris Evans (New South Wales), Diagnosing the VAT Compliance Burden: A Cross-Country Assessment (with Richard Highfield, Binh Tran-Nam & Michael Walpole (New South Wales))
Discussant: Alice Pirlot (Oxford)

Enda Hargaden (Tennessee), Does Statutory Incidence Matter? Earnings Responses to Social Security Contributions (with Barra Roantree (Economic and Social Research Institute))
Discussant: Michael Stimmelmayr (ETH Zurich)

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July 10, 2019 in Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Gianni: Partnership Audit Rules After The Final Regulations

Monica Gianni (California State University Northridge), Partnership Audit Rules: After the Final Regulations, 128 J. Tax'n 9 (June 2019):

As part of the Bipartisan Budget Act of 2015 (BBA), Congress repealed the TEFRA audit rules and the audit rules for electing large partnerships and replaced them with a new audit regime (the BBA audit rules). The BBA audit rules generally are effective for audits of partnership returns for tax years beginning after 2017. Although the TEFRA audit rules were enacted in 1982 to address issues with partnership audits, particularly tax shelters, they proved difficult to implement. In a 1990 report to Congress, the Internal Revenue Service (IRS) and the Treasury concluded that large partnership audits were an inefficient and time-intensive use of limited resources. The BBA audit rules address the deficiencies of the TEFRA audit rules through a centralized audit system that requires partnership adjustments to be determined at the partnership level and any tax attributable to the adjustments to be assessed and collected at the partnership level. The rules allow for a small-partnership opt-out and an elective alternative to “push out” the audit adjustments made and tax paid to the partners. The audit process is streamlined by limiting the right to notices and participation in the audit to one “partnership representative” who has the “sole authority” to act for the partnership in an audit.

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July 10, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Tuesday, July 9, 2019

Choi: The Substantive Canons Of Tax Law

Jonathan H. Choi (NYU), The Substantive Canons of Tax Law, 72 Stan. L. Rev. ___ (2019):

Anti-abuse doctrines in tax law have traditionally been formulated as multi-factor tests that weigh the facts of the taxpayer’s case but ignore the tax statute at issue. This approach has proven problematic: some judges import statutory considerations regardless, creating inconsistency and confusion, and some scholars criticize the doctrines as antitextual violations of the separation of powers.

This Article argues that anti-abuse doctrines should be considered substantive canons of construction, interpretive presumptions that can be rebutted by statutory text or purpose. This resolves apparent arbitrariness in the doctrines’ application as simply the rebuttal of presumptions and reconciles them to textualists as constitutionally permissible background norms. It also provides a framework to test the validity of disputed doctrines and allows them to be more flexible and intuitive.

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July 9, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Business Tax Symposium Today At Oxford

Oxford Business Tax (2019)The Centre for Business Taxation's annual three-day summer symposium continues today at the Saïd Business School, University of Oxford (program):

Katarzyna Bilicka (Utah State), Debt Shifting Restrictions and Reallocation of Debt (with Yaxuan Qi (City University of Hong Kong) & Jing Xing (Shanghai Jiao Tong))
Discussant: Tim Goodspeed (CUNY)

Jennifer Blouin (Pennsylvania), Double Trouble: How Much of U.S. Multinationals' Profits are Really in Tax Havens? (with Leslie Robinson (Dartmouth College))
Discussant: Travis Chow (Singapore Management University)

Jacob Goldin (Stanford), Ironing Out the Tax Code (with Edward Fox (Michigan))
Discussant: Anzhela Cedelle (Oxford)

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July 9, 2019 in Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Johnson: No Orchard, No Capital Gain

Calvin H. Johnson (Texas), No Orchard, No Capital Gain, 72 Tax Law. 501 (2019):

ABA Tax LawyerAs a matter of principle, capital gain is the gain from invested capital or basis. If the taxpayer has no basis in something of value it sells, there is no capital gain.

The principle that capital gain is gain from capital is embedded in the ordinary English language meaning of “capital gain,” which reflects the long history of the English property system going back into feudal tenures. Property purchased by expenses charged to the income interest remains part of the income interest and does not become capital gain reserved for the next heir.

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July 9, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Monday, July 8, 2019

Tax Policy Conference Today At Cambridge

Cambridge Centre for Tax LawThe two-day Cambridge Tax Policy Conference hosted by the Centre for Tax Law kicks off today at the University of Cambridge.  U.S. Tax Profs presenting papers include:

Henry Ordower (St Louis), Immigration, Emigration, Fungible Labor and the Retreat from Progressive Taxation

Darien Shanske (UC-Davis), Public Finance and Tax Policy in the World of Goldilocks (or, a Theory of When a System of Public Finance Becomes Disgraceful)

Other U.S. Tax Profs chairing panels include:

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July 8, 2019 in Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Lesson From The Tax Court: When Does A Business Start?

Tax Court (2017)It takes money to make money.  Generally Congress allows taxpayers to deduct the money it takes from the money they make.  That’s the idea in §162.  But §162’s deceptively simple language----allowing a deduction for all “the ordinary and necessary expenses paid or incurred in carrying on a trade or business”---has gaps, to be filled by other statutes.  For example, §§183 and 212 apply the §162 idea to activities that are not a “trade or business” but still produce income and have associated costs.  And then there is that pesky timing issue: which costs are “expenses” that should be deducted in the current year and which costs should only allowed to be deducted over a longer period of time?  Sections 168(k) and 179 allow taxpayers to accelerate deductions of certain capital costs that otherwise would not qualify as “expenses” under §162’s simple language.

Section 195 deals with another gap:  how to treat the costs of starting a business.  Section 162 does not permit deductions until such time as the taxpayer is actually “carrying on” the business.  Section 195 allows taxpayers to reach back to the time before the business started and deduct their start up costs.  But to get to use §195 a taxpayer must actually start their business.  Last week’s case of Steven Austin Smith v. Commissioner, T.C. Sum. Op. 2019-12 (July 1, 2019) (Judge Vasquez) teaches a nice lesson about what it means to start a business.  There, the court found that a taxpayer was indeed carrying on his business even in a year where he had no sales income.  To be sure, he still lost because he was unable to substantiate his expenses.  There’s a bit of a lesson there as well.  But the main lesson is about when a business starts.

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July 8, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (4)

Business Tax Symposium Today At Oxford

Oxford Business Tax (2019)The Centre for Business Taxation's annual three-day summer symposium kicks off today at the Saïd Business School, University of Oxford (program):

Reuven Avi-Yonah (Michigan), Bridging the Red-Blue Divide: A Proposal for U.S. Regional Tax Relief (with Orli Avi-Yonah, Nir Fishbien, Gianluca Mazzoni & Haiyan Xu (Michigan))
Discussant: Jennifer Blouin (Pennsylvania)

Lucie Gadenne (Warwick), Taxation and Supplier Networks: Evidence from India (with Tushar K. Nandi (Center for Studies in Social Sciences) & Roland Rathelot (Warwick))
Discussant: Eddy Tam (Oxford)

Itai Grinberg (Georgetown), Stabilizing 'Pillar One': Corporate Profit Reallocation in an Uncertain Environment
Discussant: Michael Devereux (Oxford)

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July 8, 2019 in Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Sunday, July 7, 2019

Aprill: 2019 Overview Of Tax Issues For Synagogues And Other Religious Congregations

Ellen P. Aprill (Loyola-L.A.), 2019 Overview of Tax Issues for Synagogues and other Religious Congregations:

The attached revises the guides for synagogues and other religions congregations that I posted in 2010. These new versions reflect applicable law as of June, 2019. They summarize the rules I have been most often asked in the many years I have given advice on these matters, primarily with the Jewish community. One guide is directed specifically at synagogues; the other to religious congregations generally. (I use the term “religious congregations” rather than “churches” to be more inclusive.)

In addition to an overview, each guide discusses: (a) requirements for setting compensation; (b) lobbying and campaign; (c) substantiation of charitable contributions; (d) charitable fundraising; (e) payroll taxes and withholding for clergy; (f) parsonage and housing allowances; and (g) discretionary funds.

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July 7, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

The Top Five New Tax Papers

SSRN Logo (2018)This week's list of the Top 5 Recent Tax Paper Downloads, is the same as last week's list:

  1. [508 Downloads]  International Effective Minimum Taxation – The GLOBE Proposal, by Joachim Englisch (University of Muenster) & Johannes Becker (University of Muenster)
  2. [469 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  3. [220 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  4. [162 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  5. [137 Downloads]  The Supreme Court, Due Process and State Income Taxation of Trusts, by Bridget Crawford (Pace) & Michelle Simon (Pace)

July 7, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Saturday, July 6, 2019

Whitelashing: Black Politicians, Taxes, And Violence

Trevon Logan (Ohio State), Whitelashing: Black Politicians, Taxes, and Violence:

This paper provides the first evidence of the effect of tax policy on the likelihood of violent attacks against black politicians. I find a strong positive effect of local tax revenue on subsequent violence against black politicians. A dollar increase in per capita county taxes increases the likelihood of a violent attack by more than 25%. The result is robust to numerous economic, social, historical, and political factors. I also find that counties where black officeholders were attacked had the largest negative tax revenue changes between 1870 and 1880 and that violence against black politicians is unrelated to other forms of post-Reconstruction racial violence. This provides the first quantitative evidence that political violence at Reconstruction's end was related to black political efficacy.

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July 6, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Friday, July 5, 2019

Weekly SSRN Tax Article Review And Roundup: Kim Reviews Schön's How To Tax The Digitalized Economy

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Wolfgang Schön (Max Planck), One Answer to Why and How to Tax the Digitalized Economy (June 2019).

KimTaxation of the digitalized economy is without a doubt the most important topic of international taxation in 2019. The G20 and the OECD have already released three documents this year—a Policy Note in January, a Public Consultation Document in February, and a Programme of Work to Develop a Consensus Solution in May—to follow up on the Action 1 of the BEPS Project (Addressing the Tax Challenges of the Digital Economy) released in 2015 and the interim report published in 2018. The February 2019 Public Consultation Document outlines three proposals under its consideration: 1) the User Participation Proposal, 2) the Marketing Intangibles Proposal, and 3) the Significant Economic Presence Proposal. The subsequent May 2010 Programme of Work categorized important differences in the prior three proposals into new nexus rules and new profit allocation rules. In consideration of the new profit allocation rules, the Programme of Work addressed several options under a number of different labels, including the modified residual profit split method, fractional apportionment method, distribution-based approaches, and so on.

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July 5, 2019 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

Grinberg Presents Corporate Profit Reallocation In An Uncertain Environment Today At Oxford

GrinbergItai Grinberg (Georgetown) presents Stabilizing 'Pillar One': Corporate Profit Reallocation in an Uncertain Environment at the annual summer conference on Taxing the Digitalised Economy: Closing in on Reform (program) today at the Centre for Business Taxation at the Saïd Business School, University of Oxford:

This paper is about how the world reestablishes international tax order.

The paper focuses on the OECD’s work on profit reallocation and asks whether this multilateral effort can be successful in stabilizing the international tax system. The analysis centers on the current leading concepts for reallocating profit among jurisdictions under what is known as “Pillar One” of the OECD work programme. To analyze whether any Pillar One concept can be turned into a stable multilateral regime, it is necessary to specify certain elements of what a proposal to reallocate profits might entail. Accordingly, this paper sets out two strawman proposals. One strawman uses a “market intangibles” concept that explicitly separates routine and residual returns. The other strawman might be described, in current OECD parlance, as a “distribution-based” approach.

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July 5, 2019 in Colloquia, Scholarship, Tax, Tax Conferences, Tax Scholarship, Tax Workshops | Permalink | Comments (0)

Thursday, July 4, 2019

Goldin & Reck: Revealed Preference Analysis With Framing Effects

Jacob Goldin (Stanford) & Daniel Reck (London School of Economics), Revealed Preference Analysis with Framing Effects:

In many settings, decision-makers’ behavior is observed to vary based on seemingly arbitrary factors. Such framing effects cast doubt on the welfare conclusions drawn from revealed preference analysis. We relax the assumptions underlying that approach to accommodate settings in which framing effects are present. Plausible restrictions of varying strength permit either partial- or point-identification of preferences for the decision-makers who choose consistently across frames. Recovering population preferences requires understanding the empirical relationship between decision-makers’ preferences and their sensitivity to the frame. We develop tools for studying this relationship and illustrate them with data on automatic enrollment into pension plans.

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July 4, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, July 3, 2019

Yale: Mutual Fund Tax Overhang

Ethan Yale (Virginia), Mutual Fund Tax Overhang, 38 Va. Tax Rev. 397 (2019):

The built-in gain in a mutual fund’s portfolio is referred to as “tax overhang.” Tax is imposed on investors who buy shares in mutual funds with tax overhang even though the gain accrued before their investment. The consequence is accelerated tax, increasing the shareholders’ effective tax rate. This article (1) explains why this occurs and why it is a problem, (2) describes the magnitude of the problem, (3) describes and illustrates avoidance strategies funds use to avoid the bad effects of tax overhang, (4) argues that reform is warranted, and (5) describes and evaluates the options for reform.

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July 3, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

The Law Of High-Wealth Exceptionalism

Allison Anna Tait (Richmond), The Law of High-Wealth Exceptionalism, 71 Ala. L. Rev. ___ (2019):

No family is an island. But some families would like to be – at least when it comes to wealth preservation – and they depend on what this Article calls the law of high-wealth exceptionalism to facilitate their success. The law of high-wealth exceptionalism has been forged, over the years, from the twinned scripts of wealth management and family wealth law, both of which constitute high-wealth families as sovereign entities capable of self-regulation and deserving of exemption from the rules that govern ordinary-wealth families. Consequently, high-wealth families take advantage of complicated estate planning techniques and highly favorable wealth rules in order build walls around their family fortunes and construct bespoke governance systems. Hiding in plain sight, the law of high-wealth exceptionalism protects, privileges, and enables high-wealth families in their own particular form of organizational sovereignty.

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July 3, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Wednesday, June 26, 2019

SSRN Tax Professor Rankings

SSRN Logo (2018)SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  This ranking includes downloads from two 30- and 35-page papers by 12 tax professors on the new tax legislation that garnered a lot of media attention (including the New York Times and Washington Post) and generated a massive amount of downloads (the papers are the most downloaded tax papers of all-time by over 200%).  See Brian Leiter (Chicago), 11 Tax Profs Blow Up The SSRN Download Rankings. (For some reason, Mitchell Kane (NYU) — the twelfth academic co-author of the two papers — is not included in the SSRN download rankings (although the downloads are included on his individual author page)).  Here is the new list (through June 1, 2019) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

    All-Time   Recent
Reuven Avi-Yonah (Michigan)  183,904 Reuven Avi-Yonah (Michigan) 19,128
Dan Shaviro (NYU) 118,494 Daniel Hemel (Chicago) 16,752
David Gamage (Indiana-Bl.) 114,041 Darien Shanske (UC-Davis)  13,878
Daniel Hemel (Chicago) 112,425 David Gamage (Indiana-Bl.) 13,762
Lily Batchelder (NYU) 111,676 Dan Shaviro (NYU) 13,545
Darien Shanske (UC-Davis) 108,155 Manoj Viswanathan (UC-Hastings) 13,026
Cliff Fleming (BYU) 103,389 David Kamin (NYU) 12,518
David Kamin (NYU) 100,287 Ari Glogower (Ohio State) 12,387
Manoj Viswanathan (UC-Hastings) 100,244 Lily Batchelder (NYU) 12,171
10  Rebecca Kysar (Fordham) 99,397 Cliff Fleming (BYU) 11,944
11  Ari Glogower (Ohio State) 98,164 Rebecca Kysar (Fordham)  11,848
12  Michael Simkovic (USC) 43,028 Richard Ainsworth (BU) 2,946
13  D. Dharmapala (Chicago) 36,866 Michael Simkovic (USC) 2,925
14  Paul Caron (Pepperdine) 35,469 Brad Borden (Brooklyn) 2,573
15  Louis Kaplow (Harvard) 31,570 Kyle Rozema (Chicago) 2,444
16  Richard Ainsworth (BU) 27,625 Bridget Crawford (Pace) 2,368
17  Ed Kleinbard (USC) 25,840 D. Dharmapala (Chicago) 2,366
18  Vic Fleischer (UC-Irvine) 25,452 Ruth Mason (Virginia) 2,327
19  Jim Hines (Michigan) 24,386 Jacob Goldin (Stanford) 2,296
20  Gladriel Shobe (BYU) 23,982 Joe Bankman (Stanford) 1,971
21  Ted Seto (Loyola-L.A.) 23,450 Robert Sitkoff (Harvard) 1,912
22  Richard Kaplan (Illinois) 23,423 Hugh Ault (Boston College) 1,862
23  Brad Borden (Brooklyn) 22,664 Louis Kaplow (Harvard) 1,707
24  Robert Sitkoff (Harvard) 22,271 Kirk Stark (UC-Davis) 1,667
25  Katie Pratt (Loyola-L.A.) 22,120 Dennis Ventry (UC-Davis) 1,622

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June 26, 2019 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Rankings, Tax Scholarship | Permalink | Comments (0)

Wednesday, June 12, 2019

Field: A Tax Professor's Guide To Formative Assessment

Heather M. Field (UC-Hastings), A Tax Professor's Guide to Formative Assessment, 22 Fla. Tax Rev. ___ (2019):

The ABA Standards now require formative assessment to be integrated into law school courses, and there is extensive literature, both in legal education and education more generally, about the goals and methods for formative assessment. This Article makes the key insights of that literature accessible and actionable for professors teaching tax courses. This crash course on formative assessment is intended to enable tax professors to integrate formative assessment into their classrooms effectively and efficiently without having to become legal pedagogy scholars in addition to being tax law scholars. The formative assessment techniques discussed herein range from those that require relatively little time and effort to those that may be particularly impactful but that require additional time and work. This Article also discusses strategies for reducing the burden of even the work-intensive approaches.

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June 12, 2019 in Legal Ed Scholarship, Scholarship, Tax, Tax Scholarship, Teaching | Permalink | Comments (1)

Saturday, June 8, 2019

14th Annual Junior Tax Scholars Workshop Concludes Today At Richmond

Richmond (2018)Panel #4: Tax and Political Economy

Jeremy Bearer-Friend (NYU), Taxpaying as a Commercial Exchange: Taking Market Metaphors Seriously
Commentators: Young Ran (Christine) Kim (Utah), Ari Glogower (Ohio State)

Clint Wallace (South Carolina), Democracy Enhancing Tax Policy
Commentators: Michelle Layser (Illinois), Hayes Holderness (Richmond)

Panel #5: Progressivity, Corporations, Capital Income

Danny Schaffa (Richmond), Upon Further Realization
Commentators: Kyle Rozema (Chicago), Young Ran (Christine) Kim (Utah)

Ari Glogower (Ohio State), Progressive Tax Procedure
Commentators: Manoj Viswanathan (UC-Hastings), Kyle Rozema (Chicago)

Gladriel Shobe (BYU), Benefit Corporations and the Shareholder Primacy Norm
Commentators: Tracey Roberts (Samford), Sloan Speck (Colorado)

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June 8, 2019 in Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)