Why Small Taxpayers Should Receive A De Minimis Exemption From The GILTI Regime

Patrick Riley Murray (J.D. 2022, Minnesota), Note, Size Matters (Even If the Treasury Insists It Doesn’t): Why Small Taxpayers Should Receive a De Minimis Exemption from the GILTI Regime, 106 Minn. L. Rev. 1625 (2022):

The Tax Cuts & Jobs Act drastically altered the U.S. international tax landscape. Among its most significant changes is the implementation of the Global Intangible Low-Taxed Income (GILTI) regime. GILTI attempts to increase the U.S. tax base by preventing both the offshoring of intangible assets and the avoidance of U.S. tax. Though aimed at large multinational corporations, GILTI also applies to small businesses.

Through inordinately complex methods, GILTI mandates controlled foreign corporations to artificially reverse engineer their intangible income, and it requires the U.S. shareholders of those corporations to include that artificial amount in gross income. GILTI also imposes new, onerous reporting requirements that are applicable from the first dollar of income. When the Treasury proposed its GILTI regulations, small taxpayers asked for relief. But the Treasury balked, using loopholes within the Regulatory Flexibility Act to avoid legally mandated analysis on the effects of its regulations on small businesses.

This Note discusses the incongruity of the GILTI regime’s purposes with its effects on U.S. citizens who reside abroad and own a business.

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Cain: Taxation Of Unmarried Partners

Patricia A. Cain (Santa Clara), Taxation of Unmarried Partners, 99 Wash. U. L. Rev. ___ (2022):

The number of unmarried couples in the United States has been steadily increasing. While living together these partners often make property transfers between each other. And, when the relationship ends, either during their joint lifetimes or at the death of one partner, even more property transfers are likely to occur. Yet, there are no clear tax rules that apply to these transfers. Traditional tax rules typically characterize most of these transfers either as taxable gifts or as taxable income. This article argues that it is time to rethink those rules. Since federal tax law follows state property law to determine tax consequences of property divisions and transfers, the growing body of property law rules that apply to unmarried couples needs to be examined more closely to determine how they might affect certain tax consequences. 

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Politicians Avoid Tax Increases Around Elections

Andrew C. Chang (Federal Reserve; Google Scholar), Linda R. Cohen (UC-Irvine), Amihai Glazer (UC-Irvine) & Urbashee Paul (Northeastern), Politicians Avoid Tax Increases Around Elections:

We use new annual data on gasoline taxes and corporate income taxes from U.S. states to analyze whether politicians avoid tax increases in election years. These data contain 3 useful attributes: (1) when state politicians enact tax laws, (2) when state politicians implement tax laws on consumers and firms, and (3) the size of tax changes. Using a pre-analysis research plan that includes regressions of tax rate changes and tax enactment years on time-to-gubernatorial election year indicators, we find that elections decrease the probability of politicians enacting increases in taxes and reduce the size of implemented tax changes relative to non-election years. We find some evidence that politicians are most likely to enact tax increases right after an election.

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Lesson From The Tax Court: The Difference Between Rejecting An OIC And Reviewing A Rejection

Tax collection is a process, not an event.  The process can last ten years or more.  During that time many different events may occur.  Different events may bring with them different decision-makers within the IRS.  The secret sauce of representing clients is that when you hit an unfavorable decision-maker, try to find a new one.  An example of that is getting a CDP hearing.  CDP hearings allow taxpayers to pause collection while they ask for alternatives to full collection, such as Offers In Compromise (OICs).  The CDP hearing is conducted by a Settlement Officer (SO) in the IRS Independent Office of Appeals (Appeals).

Thus, the SO represents a new layer of decision-making.  But what do you get with this new decision-maker?  Today’s lesson teaches that you may not get what you think.

Michael D. Brown v. Commissioner, 158 T.C. No. 9 (June 23, 2022) (Judge Lauber), address what I think is a common misconception about CDP hearings: that Appeals makes decisions about collection alternatives.  It does not.  It reviews decisions made by the relevant IRS function.  At issue in Brown was whether the IRS waited more than two years to reject his OIC, which was proposed as part of a CDP hearing.  If so, then his low-ball OIC would be deemed accepted under §7122(f).  Although the IRS unit that evaluated his OIC rejected it after a few months, the formal Appeals decision in the CDP hearing came more than two years later.  Mr. Brown went to Tax Court, claiming the benefit of §7122(f).  The Tax Court said no.  Appeals did not reject the OIC; all it was doing was reviewing the rejection decision made by the IRS.

This was not a slam dunk win for the IRS.  I think it’s worth your time to see why.  Details below the fold.

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The Top Five New Tax Papers

There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a paper returning to the list at #5:

1. [598 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (Catholic University Portugal & IBFD; Google Scholar)
2. [461 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
3. [306 Downloads]  Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I, by Abraham Sutherland (Virginia; Google Scholar)
4. [289 Downloads]  The Treatment of Tax Incentives under Pillar Two, by Belisa Ferreira Liotti (Google Scholar), Joy Waruguru Ndubai, Ruth Wamuyu, Ivan Lazarov (Google Scholar) & Jeffrey Owens (all of Vienna University of Economics and Business)
5. [250 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)

Today's Law, Society, And Taxation Panels

Today's Law, Society, and Taxation panels at the virtual 2022 Law & Society Association Annual Meeting:

Session #18:  Teaching Taxation: A Pittsburgh Tax Review Symposium (Diane Klein (Southern), Chair/Discussantl Author, Teaching Critical Tax: What, Why, & How, 19 Pitt. Tax Rev. 143 (2022)):
In its Spring 2022 issue, the Pittsburgh Tax Review published a symposium issue dedicated to teaching taxation. The idea behind the special issue is to collect in one place the insights of leading tax teachers as a service for all who are interested in and devoted to educating current law students and future tax lawyers. This roundtable session includes several of the contributors to this special issue who will describe their contributions and lead a discussion regarding tax teaching in an interactive format with the audience. The contributions featured here include using a VITA program to put a face on tax policy, incorporating critical perspectives in the tax classroom, teaching tax through film, and lessons from teaching tax during the pandemic.

• Alice Abreu (Temple), Tax on the Ground: How a VITA Course Enhances the Law School Curriculum, 19 Pitt. Tax Rev. 101 (2022)
• Katherine Pratt (Loyola-L.A.), Reflections on Law Teaching at the Post-Pandemic Crossroads, 19 Pitt. Tax Rev. 217 (2022)
• Margaret Ryznar (Indiana-McKinney), Lessons from Teaching Tax Online, 19 Pitt. Tax Rev. 295 (2022)
• Stephanie McMahon (Cincinnati), Teaching Tax Through Film: It’s Not as Crazy as it Sounds, 19 Pitt. Tax Rev. 183 (2022)

Session #14:  Directions and Strategies for Future Tax Reforms (in Europe) (Yvette Lind (Copenhagen; Google Scholar), Chair/Discussant & Patrik Emblad (Gothenburg), Discussant):

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Shaviro's Stanley Surrey And The Public Intellectual Practice Of Tax Policy

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Daniel Shaviro (NYU; Google Scholar), ‘Moralist’ Versus ‘Scientist’: Stanley Surrey and the Public Intellectual Practice of Tax Policy (July 2022).

The dichotomy of tax—as pure scientific neutral field versus encompassing a moral and social agenda—received much attention with recent years’ renewed spotlight on critical tax theory. In an interview in 1974 Firing Line TV Dialog, Stanley Surrey was confronted with this dichotomy when host William Buckley blamed Surrey that although he asserts relying on scientific observations, he is truly a tax moralist who aims to improve the world based on his own personal value principles. Following A Half-Century with the Internal Revenue Code: The Memoirs of Stanley S. Surrey (Lawrence Zelenak (Duke) & Ajay Mehrotra (Northwestern; Google Scholar) eds. Carolina Academic Press 2022), in this Essay, Shaviro explores Surrey’s tax moralism as it is self-professed in this autobiographical collection and evaluates the effect it has on the tax expenditure analysis.

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Today's Law, Society, And Taxation Panels

Today's Law, Society, and Taxation panels at the 2022 Law & Society Association Annual Meeting:

Session #9:  Tax History (Manoj Viswanathan (UC-Hastings; Google Scholar), Chair/Discussant):
While there is no imposition of tax at the supranational level, the imposition of tax at the national level within a country's own borders introduces complexity at the international level that affects issues of tax policy and tax design. The papers on this panel consider many of these complex concerns, with special attention paid, in some of the papers to the way the United States has addressed matters of international taxation.

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Penn-Wharton Hosts Virtual Discussion Today On Minimum Corporate Income Taxes

Penn-Wharton hosts a virtual discussion on Minimum Corporate Income Taxes today at 12:00 p.m. - 1:00 p.m. EDT (registration):

Minimum corporate income taxes are currently being debated as a way to generate tax revenue while preventing highly profitable companies from using tax loopholes to reduce their tax bills. In particular, a minimum tax based on income that corporations report on financial statements has been included in both the House and Senate versions of Build Back Better. Minimum taxes, such as a minimum tax on multinational corporations, are also being considered as part of tax changes codified in international agreements. Questions that will be addressed in this webinar include: Are minimum corporate income taxes efficient in general? What are the challenges with different approaches to imposing a minimum tax, both domestically and internationally? What are potential minimum tax alternatives that do not use financial statement income but can raise similar levels of revenue?

Panelists:

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Buchanan Reviews Taxation And Law And Political Economy By Bearer-Friend, Glogower, Kleiman & Wallace

Neil Buchanan (George Washington), Bringing Law and Policy Back From the Efficiency-Based Analysis: Another Important Step Toward Refocusing on Justice (JOTWELL) (reviewing Jeremy Bearer-Friend (George Washington), Ari Glogower (Ohio State), Ariel Jurow Kleiman (Loyola-L.A.) & Clint Wallace (South Carolina), Taxation and Law and Political Economy, 83 Ohio St. L.J. 471 (2022) (reviewed by Hayes Holderness (Richmond) here)):

Do the goals of fairness, equity, social justice, or other explicitly normative approaches to analyzing law and policy have any place at all in modern scholarship? Some scholars, especially those who approach the world from an orthodox economic viewpoint, have tended to reject categorically the very idea that such concepts should supplant their purportedly hard-headed analysis–an analysis that they hold out as being superior to supposedly “soft,” “sentimental,” “moralistic,” or “subjective” anti-orthodox approaches. Increasingly, however, equity-based analysis has at least been permitted as a component of most legal scholarly discussions. That itself is progress.

Even so, there continues to be a presumed distinction between self-styled “objective” approaches and the approaches of those who focus on inequality, domination, and other such fundamental questions of social justice. The familiar “equity-efficiency tradeoff” encapsulates this tension, the notion being that there are two distinct analytical categories that are not merely separate but in opposition to each other–-that is, the tradeoff says that we must sacrifice some efficiency if we desire greater equity, or instead that we must agree to doom more people to poverty if we seek to maximize efficiency. But is there a better approach? Happily yes, as Taxation and Law and Political Economy, by Professors Bearer-Friend, Glogower, Jurow Kleiman, and Wallace, clearly suggests. ...

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Mason & Knoll: The Dormant Foreign Commerce Clause After Steiner

Ruth Mason (Virginia; Google Scholar) & Michael S. Knoll (Pennsylvania) have published two abbreviated versions of their article in Volume 39, No. 3 of the Virginia Tax Review, The Dormant Foreign Commerce Clause After Wynne, 39 Va. Tax Rev. 357 (2020):

Why the Supreme Court Should Grant Certiorari in Steiner v. Utah, 95 Tax Notes State 377 (Feb. 3, 2020):

In this article, the authors urge the U.S. Supreme Court to grant certiorari in Steiner v. Utah to clarify the scope of the dormant foreign commerce clause and the role of the internal consistency test as a doctrinal tool for identifying commerce clause violations by the states.

Steiner v. Utah: Designing a Constitutional Remedy, 95 Tax Notes St. 845 (Mar. 9, 2020):

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Today's Law, Society, And Taxation Panels

Today's Law, Society, and Taxation panels at the 2022 Law & Society Association Annual Meeting:

Session #4:  International Tax I (Lotta Björklund Larsen (Exeter; Google Scholar), Chair/Discussant):
While there is no imposition of tax at the supranational level, the imposition of tax at the national level within a country's own borders introduces complexity at the international level that affects issues of tax policy and tax design. The papers on this panel consider many of these complex concerns, with special attention paid, in some of the papers to the way the United States has addressed matters of international taxation.

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Parsons: The Shifting Economic Allegiance Of Capital Gains

Amanda Parsons (Colorado), The Shifting Economic Allegiance of Capital Gains:

Technological advances and the digitalization of the global economy have created an economic environment beyond the imagination of the original designers of the international tax system. Much scholarly attention has been paid to the question of how these economic transformations should affect which country is able to tax a multinational company’s income. But which country should be able to tax capital gains income from the sale of that company’s shares is an important and overlooked question.

This Article answers this question. It concludes that taxing authority over capital gains income must be reallocated to the countries in which companies conduct business. In our modern, digitalized economy, this reallocation is necessary to align international sourcing rules with international tax law’s underlying principles.

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Today's Law, Society, And Taxation Panels

Today's Law, Society, and Taxation panels at the 2022 Law & Society Association Annual Meeting:

Session #1:  Critical Tax Theory  (Alice Abreu (Temple), Chair/Discussant):
The nominal application of tax rules to the taxpayers affected by them is often at odds with the affects of those rules in practice. In addition, the priorities and experiences of the actors participating in the drafting, interpreting, and enforcing of tax rules can impact the way those rules are created or operate. The papers on this panel employ a variety of approaches to think about the tax law in the real world, both in the lived experiences of those subject to the rules, and in the intentions of those who create and enforce the rules.

Nyamagaga Gondwe (Wisconsin), American Taxation and The Empty Promise of Black Capitalism:

The federal income tax system is more permissive in how it provides financial assistance to property owners than it is in its method of giving financial assistance to those who principally rely on labor income. Historically, the federal government has participated in expanding rights in property ownership to different historically excluded groups. Expanding those entitlements allows the government to tout individualist virtues of capitalism over collective social spending. But Professors Mehrsa Baradaran and Keeanga Yamatta-Taylor present the theories of “counterfeit capitalism” and “predatory inclusion” to show that systemic failures to regulate market racism against Black Americans have made historically significant tools for building wealth (e.g., stock ownership and homeownership) empty entitlements that drain Black resources instead. Baradaran and Yamatta-Taylor’s accounts are significant from the perspective of the tax distinction between capital and ordinary income because for the balance of American history Black American economic life has been confined to low-wage labor and low-value housing.

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Pittsburgh Tax Review Publishes New Issue

The Pittsburgh Tax Review has published Vol. 19, No. 2 (2022):

• Alice G. Abreu (Temple), Tax on the Ground: How a VITA Course Enhances the Law School Curriculum, 19 Pitt. Tax Rev. 101 (2022)
• Diane Kemker (Southern), Teaching Critical Tax: What, Why, & How, 19 Pitt. Tax Rev. 143 (2022)
• Stephanie McMahon (Cincinnati), Teaching Tax Through Film: It’s Not as Crazy as it Sounds, 19 Pitt. Tax Rev. 183 (2022)
• Victor Thuronyi (IMF (Retired)), Teaching Tax Law: A Comparative Law Perspective, 19 Pitt. Tax Rev. 211 (2022)
• Katherine Pratt (Loyola-L.A.), Reflections on Law Teaching at the Post-Pandemic Crossroads, 19 Pitt. Tax Rev. 217 (2022)
• Heather M. Field (UC-Hastings; Google Scholar), How the Pandemic Flipped My Perspective on Flipping the Tax Law Classroom, 19 Pitt. Tax Rev. 267 (2022)
• Margaret Ryznar (Indiana-McKinney), Lessons from Teaching Tax Online, 19 Pitt. Tax Rev. 295 (2022)

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Lesson From The Tax Court: TP Did Not File Return By Giving Copy To IRS Employee

Figuring out when or whether a taxpayer has filed a return is important for many reasons.  On the one hand, proper filing limits the time for the IRS to assess.  Thus taxpayers generally want the courts to find they have filed.  On the other hand, filing a frivolous or fraudulent return can lead to penalties.  In those situations, taxpayers want the courts to find they have not filed! 

Sometimes a taxpayer will give an IRS employee a copy of a return they claim was previously filed.  Does that constitute the filing of a return?  Well, it depends. Just like last week, I think it useful to compare the Tax Court and Circuit Court cases.

In a logic-challenged opinion, the Ninth Circuit recently decided giving a copy did constitute filing a return ... for for statute of limitations purposes.  See Seaview Trading, LLC v. Commissioner, 447 F.3d 706 (9th Cir. 2022), rev’g T.C. Memo. 2019-122. While I agree with the dissenting judge that “the majority's analysis and conclusions are logically absurd and should not be the holding of this court,” there is no denying the decision was good news for taxpayers.

Now comes the Tax Court and in Chule Rain Walker v. Commissioner, T.C. Memo. 2022-63 (June 15, 2022), Judge Nega decides that giving an IRS employee a copy of a frivolous return does not constitute filing a return ... for frivolous penalty purposes!

Win-win for taxpayers?  As usual, the devil is in the details, which you can find below the fold. 

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The Top Five New Tax Papers

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

1. [579 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (Catholic University Portugal & IBFD; Google Scholar)
2. [459 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
3. [322 Downloads]  Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, by Reuven Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Cardozo; Google Scholar)
4. [298 Downloads]  Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I, by Abraham Sutherland (Virginia; Google Scholar)
5. [277 Downloads]  The Treatment of Tax Incentives under Pillar Two, by Belisa Ferreira Liotti (Google Scholar), Joy Waruguru Ndubai, Ruth Wamuyu, Ivan Lazarov (Google Scholar) & Jeffrey Owens (all of Vienna University of Economics and Business)

Borden: Fixed-Price Put Options Undermine Section 1031 Treatment Of Tenant-In-Common Interests

Bradley T. Borden (Brooklyn; Google Scholar), Fixed-Price Put Options Undermine Section 1031 Treatment of Tenant-in-Common Interests, 175 Tax Notes Fed. 1989 (June 27, 2022):

A fixed-price put option held by a co-owner on an undivided interest in real property causes the undivided interest to lose its TIC status for federal income tax purposes. That option, if offset by a call option, may also signal an intent to sell the underlying property, resulting in the interest being held primarily for sale or resulting in tax ownership residing with the holder of the call option.

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Blue J: Reserve Mechanical Microcaptive Insurance Arrangement Denied On Appeal

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Bettina Xue Griffin (Senior Legal Research Associate, Blue J Legal), Reserve Mechanical: Microcaptive Insurance Arrangement Denied on Appeal, 175 Fed Tax Notes 2037 (June 27, 2022):

In this article, Alarie and Griffin explore the relative merits and prospective strengths of three of the grounds of appeal advanced by the taxpayer in Reserve Mechanical.

In our monthly Blue J Predicts column, we use tax research software to analyze pending or recently decided federal income tax cases. This month we analyze the judgment of the Tenth Circuit in Reserve Mechanical [T.C. Memo. 2018-86], which addressed whether a microcaptive insurance arrangement constituted insurance so that the premiums received were exempt from taxation under section 501(c)(15). 

Several months ago, we examined the Tax Court’s decision in Reserve Mechanical and predicted with 77 percent confidence that the taxpayer’s appeal would be dismissed and the Tax Court’s decision affirmed [Captive Insurance Appeal in Reserve Mechanical Will Likely Fail, 172 Tax Notes Fed. 1431 (Aug. 30, 2021)] That prediction was correct [Reserve Mechanical Corp. v. Commissioner, No. 18-9011 (10th Cir. May 13, 2022)].

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Marian: The Taxation Of Block Rewards

Omri Marian (UC-Irvine; Google Scholar), Law, Policy, and the Taxation of Block Rewards, 175 Tax Notes Fed. 1493 (June 6, 2022):

This report addresses the taxation of block rewards — the rewards offered to validators of blockchain transactions in exchange for maintaining the public blockchain ledger. The main question the report seeks to answer is whether newly minted cryptocurrencies (a component of block rewards) are taxable upon receipt. Some commentators have suggested that there is legal ambiguity about whether block rewards are taxable upon receipt because of the novelty of the blockchain technology. There is no such ambiguity. Block rewards are clearly taxable upon receipt under current law.

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Marian: Taxing Data

Omri Marian (UC-Irvine; Google Scholar), Taxing Data, 47 BYU L. Rev. 511 (2022): 

The Article offers a new theory of tax on data collection and transmission as a primary source of government revenue. This tax does not depend on the monetary value of data. This "data tax" can supplement, and in some instances replace, income taxes. The data tax can (1) mitigate some of the failures of income taxes in a globalized data based economy, and (2) serve to alleviate some of the externalities of a data based economy.

The Article advances the following four arguments. First, current challenges to tax systems stem largely from the fact that traditional models of taxation were designed for an economy in which the location of labor, the ownership of capital, and the monetary value of income were identifiable. These assumptions no longer stand in the modern economic environment: the data economy. Today, one the most significant sources of value creation is the analysis, manipulation, and utilization of large quantities of dispersed data. In so called "data-rich markets," source, ownership, and value are not only hard to identify — they are not always economically meaningful concepts. 

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Lesson From The Tax Court: No §163 Deduction From Foreclosure Proceeds

It’s not just Death and Taxes that are certainties in life.  Having lived through the economic downturns in 1973, 1981, 2001, and 2008, I now believe we can add Recessions to the list.  And another one seems to be coming.  So this may be a good time to pay attention to Ronald W. Howland, Jr. and Marilee R. Howland v. Commissioner, T.C. Memo. 2022-60 (June 13, 2022) (Judge Weiler), where we learn some of the obstacles taxpayers face in taking a §163 interest deduction when foreclosure proceeds only partially pay off a loan balance that includes principal and accrued interest.

In Howland, the Court did not permit any §163 deduction.  This week and next I'm going to try something new and compare the Tax Court case with a recent Circuit Court case.  I think the comparison is instructive.  This week, we compare Howland to the recent 9th Circuit opinion in Milkovich v. U.S. 24 F.4th 1 (9th Cir. 2022), where the 9th Circuit did permit a §163 deduction from foreclosure proceeds.  Both Howland and Milkovich arose from the Great Recession.  Looking at the similarities and difference of the two cases gives us the lesson, which is in part a cautionary tale on how at least some of the obstacles to deduction may be self-created.

Details below the fold

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The Top Five New Tax Papers

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

1. [535 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (Catholic University Portugal & IBFD; Google Scholar)
2. [452 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
3. [311 Downloads]  Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, by Reuven Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Utah; Google Scholar; moving to Cardozo)
4. [255 Downloads]  Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I, by Abraham Sutherland (Virginia; Google Scholar)
5. [251 Downloads]  The Treatment of Tax Incentives under Pillar Two, by Belisa Ferreira Liotti (Google Scholar), Joy Waruguru Ndubai, Ruth Wamuyu, Ivan Lazarov (Google Scholar) & Jeffrey Owens (all of Vienna University of Economics and Business)

Avi-Yonah Posts International Tax Papers On SSRN

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

• Why the United States Needs the Global Minimum Tax (June 21, 2022)
• The Benefits Principle (June 2, 2022)
• Preface to Andrea Musselli, Tax Transfer Pricing under the Arm’s Length and the Sale Country Principles (June 2, 2022)
• The Single Tax Principle (June 1, 2022)

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Hemel's The Passthrough Entity Tax Scandal

This week, David Elkins (Netanya, visiting NYU 2021-2023; Google Scholar) reviews a new paper by Daniel J. Hemel (NYU; Google Scholar), The Passthrough Entity Tax Scandal (2022).

One of the more fascinating aspects of the 2017 Tax Cuts and Jobs Act concerns the limitation on deducting state and local income taxes. Prior to the enactment of the TCJA, state and local income taxes were fully deductible when computing federal tax liability. The TCJA capped that deduction for individuals at $10,000. In itself the cap was not particularly remarkable. There are innumerable sections in the Code that cap deductions at some arbitrary amount. What was fascinating about the SALT cap was the politics involved. The TCJA cap primarily strikes at the wealthiest taxpayers: the vast majority of individuals pay much less than $10,000 in state and local income taxes. One might therefore expect that, were there to be any political bickering on the issue, it would be the Democrats who would fully support the cap and the Republicans who would resist. It did not play out that way. The highly contentious measure was proposed by the Republicans and fiercely denounced by the Democrats. The reason for this seeming reversal of the usual political positions was pure partisan politics: blue states tend to have higher income taxes than red states (the only states with top marginal rates higher than 10% are California, New York, and New Jersey).

In this week’s feature article, Professor Daniel Hemel describes how states have attempted to bypass the SALT cap by enacting pass-through entity taxes (PETs).

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The International Law Association's Project On International Tax Law—Phase 1

Juliane Kokott (Court of Justice, European Union), Pasquale Pistone (Vienna) & Robin Miller (Court of Justice, European Union), Public International Law and Tax Law: Taxpayers' Rights: The International Law Association's Project on International Tax Law—Phase 1, 52 Geo. J. Int'l L. 381 (2021): 

Public international law recognizes rights to non-state actors. In tax matters, these include taxpayers and other private persons involved in the levying of tax. Their fundamental rights are human rights, which must be effectively protected even when there is a general interest of the community to the collection of tax. This Article contains a comprehensive worldwide analysis of such rights and addresses the different issues that arise—in national and cross-border situations—in connection with tax procedures and sanctions. 

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Insider Giving

Sureyya Burcu Avci (Sabanci University; Google Scholar), Cindy A. Schipani (Michigan; Google Scholar), H. Nejat Seyhun (Michigan; Google Scholar) & Andrew Verstein (UCLA; Google Scholar), Insider Giving, 71 Duke L.J. 619 (2021):

Corporate insiders can avoid losses if they dispose of their stock while in possession of material nonpublic information. One means of disposal, selling the stock, is illegal and subject to prompt mandatory reporting. A second strategy is almost as effective, yet it faces lax reporting requirements and enforcement. That second method is to donate the stock to a charity and take a charitable tax deduction at the inflated stock price. This “insider giving” is a potent substitute for insider trading. We show that insider giving is far more widespread than previously believed. In particular, we show that insider giving is not limited to officers and directors. Large investors appear to regularly receive material nonpublic information and use it to avoid losses.

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Haneman: Tax Incentives For Green Burial

Victoria J. Haneman (Creighton; Google Scholar), Tax Incentives for Green Burial, 21 Nev. L.J. 491 (2021):

Every living being is doomed to decay and die and decay some more. Death is inevitable, and the disposal of our dead is a fundamental global activity with the potential to have significant environmental impact. In the United States, the environmental toxicity of “traditional” modern burial is stark. A cosmeticized body is pumped with three gallons of embalming fluid (containing chemicals such as formaldehyde) that eventually leaches through metal and wood and into the ground. An estimated 5.3 million gallons of embalming chemicals are buried annually in what are essentially luxury landfill-slash-golf-courses, with landscaping and grass to maintain and mow, in coffins that are typically constructed of nonbiodegradable chipboard. And while cremation is a more environmentally friendly alternative, incineration cremation falls short of being labeled “green.” Fire-based cremation utilizes significant resources and energy, attributable to the substantial quantity of fossil fuel required to burn human remains at 1,562° F (850° C) to reduce a corpse to ash. Pollutants are generated in doing so, including an average of 250,000 tons per year of carbon emissions and an estimated 320 to 6,000 pounds of mercury (from incineration of dental fillings) per year.

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Blockchain And Tax Administration: A Critical Assessment

Eliza Mik (Chinese University of Hong Kong; Google Scholar) & Noam Noked (Chinese University of Hong Kong; Google Scholar), Blockchain and Tax Administration: A Critical Assessment, 50 Australian L. Rev. 180 (2021):

Recent publications argue that blockchains could substantially improve tax administration. This article critically evaluates these claims and examines several proposed use cases. It argues that many of the problems that blockchains purportedly solve exist off-chain, in the real world, and cannot be addressed by a blockchain. Blockchains can facilitate the storage and sharing of tax information. They cannot, however, streamline reporting requirements or enhance cooperation between tax authorities. This article also claims that the main benefit from several use cases derives from digitalization in general, not from the deployment of any specific type of database. It remains to be determined whether blockchains are in fact superior to other digitalized systems that perform comparable functions in tax administration.

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A Fresh Perspective On The Valuation Of Conservation Easements

Alan Feld (Boston University), Jacob Nielsen (J.D. 2021, Boston University) & Theodore S. Sims (Boston University), Green, or Greed? A Fresh Perspective on the Valuation of Conservation Easements, 76 Tax L. Rev. __ (2022):

Charitable contributions of "conservation easements" have since 1980 allowed high-income taxpayers to shelter income from taxation through overvalued deductions. Overvaluation has increased dramatically in the past 20 years: a 2016 study of all easement decisions since 1980 reported that while overvaluation had averaged by a factor of two before 1994, it averaged by a factor of ten for decisions between 1994 and 2016. SOI data disclose that aggregate easement contributions deducted on Schedule A grew from $2.26 billion in 2015 to $6.5 billion in 2018 (the most recent year available). A recent report by supporters of conservation easements acknowledges that "neither the [IRS] nor the courts have sufficient resources to effectively police valuation abuse."

Most of the concern has been with "syndicated conservation easements" ("SCEs"), and most proposed remedies to easement overvaluation focus on SCEs. We show, however, that exactly the same traits that produce overvalued SCEs — allowing charitable deductions based on "fair market" value, which sanctions deducting unrealized appreciation without taxing the corresponding gain, combined with the unavoidable need to value contributed easements through as manipulable a process as appraisal -— have facilitated abusive overvaluation of non-syndicated easements too.

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Congress Takes Its War On Cash To Digital Assets: Understanding Tax Code Section 6050I

Abraham Sutherland (Virginia; Google Scholar), Congress Takes Its War on Cash to Digital Assets: Understanding Tax Code Section 6050I:

The United States government really does not like Americans to make large cash transactions. Now, due to a new law, it really, really does not want Americans to use “digital assets,” either. My goal is to convince you that the first claim is true. The second claim will then be self-evident.

Of course, no one cares about cash anymore, except criminals. We’ve always known something better: bank accounts, paper checks, and wire transfers. Cash has been obsolete for meaningful commerce for a long time, and since 1984 we’ve had a law in place to make sure it stays that way. Cash, as a tool for large, non-criminal transactions in the modern economy, is dead. Cash is a relic.

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QOZs Illustrate How Critical Tax Theory May Bolster Tax Policy Analysis

Islame Hosny (Pryor Cashman, New York), QOZs Illustrate How Critical Tax Theory May Bolster Tax Policy Analysis, Yale J. on Reg.: Notice & Comment (June 25, 2022):

June 30, 2022, is the last day on which certain taxpayers who had capital gains in 2021 can defer paying tax on those gains until 2026 by investing them in Qualified Opportunity Funds (QOFs)—investment vehicles used to invest in Qualified Opportunity Zones (QOZs). According to the IRS, the purpose of the QOZ program is to “spur economic development and job creation in distressed communities by providing tax benefits to investors.”

One such tax benefit is that an investor who holds a QOF investment for 10 years receives a 100% exclusion from federal tax on appreciation on the investment. That is a 0% effective tax rate on a potentially unlimited amount of gain. But how does the 0% tax rate compare to that of a QOZ resident?

Today, there are 8,764 QOZs in the United States. One of those QOZs is Central Harlem, where 29% of residents are below the federal poverty level, 77.2% of households do not include children, and the median household income is $57,720. The federal income tax liability for a single filer with no children, with income of $57,720, and who takes the standard deduction ($12,550) and, thus, has taxable income of $45,170, is $5,687. This results in an effective federal tax rate of 12.59% for a typical resident in Central Harlem. ...

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SSRN Tax Professor Rankings

SSRN has updated its monthly ranking of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through June 1, 2022) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

		All-Time			Recent
1	Reuven Avi-Yonah (Michigan)	209,682	1	Reuven Avi-Yonah (Michigan)	9,738
2	Daniel Hemel (NYU)	125,718	2	Daniel Hemel (NYU)	5,526
3	Dan Shaviro (NYU)	124,944	3	Bridget Crawford (Pace)	4,157
4	Lily Batchelder (NYU)	124,498	4	Edward McCaffery (USC)	3,462
5	David Gamage (Indiana-Bloom.)	121,781	5	D. Dharmapala (Chicago)	2,931
6	Darien Shanske (UC-Davis)	114,774	6	Zachary Liscow (Yale)	2,898
7	David Kamin (NYU)	112,036	7	Lily Batchelder (NYU)	2,869
8	Cliff Fleming (BYU)	107,028	8	Ruth Mason (Virginia)	2,804
9	Manoj Viswanathan (UC-Hastings)	103,776	9	David Gamage (Indiana-Bloom.)	2,754
10	Rebecca Kysar (Fordham)	102,888	10	Darien Shanske (UC-Davis)	2,639
11	Ari Glogower (Ohio State)	102,674	11	Robert Sitkoff (Harvard)	2,637
12	D. Dharmapala (Chicago)	47,503	12	Kim Clausing (UCLA)	2,599
13	Michael Simkovic (USC)	46,794	13	David Kamin (NYU)	2,571
14	Paul Caron (Pepperdine)	39,579	14	Richard Ainsworth (Boston Univ.)	2,524
15	Louis Kaplow (Harvard)	37,015	15	Kyle Rozema (Washington University)	2,193
16	Richard Ainsworth (Boston Univ.)	35,171	16	Dan Shaviro (NYU)	2,040
17	Bridget Crawford (Pace)	32,107	17	Margaret Ryznar (Indiana-Indy)	1,983
18	Robert Sitkoff (Harvard)	29,200	18	Ari Glogower (Ohio State)	1,828
19	Ed Kleinbard (USC)	28,593	19	Louis Kaplow (Harvard)	1,797
20	Vic Fleischer (UC-Irvine)	28,508	20	Brad Borden (Brooklyn)	1,718
21	Brad Borden (Brooklyn)	28,126	21	Francine Lipman (UNLV)	1,630
22	Jim Hines (Michigan)	26,637	22	Hugh Ault (Boston College)	1,579
23	Ruth Mason (Virginia)	26,433	22	Vic Fleischer (UC-Irvine)	1,536
24	Ted Seto (Loyola-L.A.)	25,596	24	Yariv Brauner (Florida)	1,521
25	Katie Pratt (Loyola-L.A.)	25,472	25	Gregg Polsky (Georgia)	1,466

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Shaviro: Stanley Surrey And The Public Intellectual Practice Of Tax Policy

Following up on my previous post, A Half-Century with the Internal Revenue Code: The Memoirs of Stanley S. Surrey (Lawrence Zelenak (Duke) & Ajay Mehrotra (Northwestern; Google Scholar) eds. Carolina Academic Press 2022) (reviewed by Tracey Roberts (Cumberland; Google Scholar) here): Daniel Shaviro (NYU), 'Moralist' Versus 'Scientist': Stanley Surrey and the Public Intellectual Practice of Tax Policy:

Nearly forty years after his untimely death, Stanley Surrey, the renowned Harvard law professor (and Treasury official), remains perhaps the most important and influential tax law scholar in American history. The recent publication of his highly illuminating memoirs offers a convenient occasion for reassessing his work.

In offering such a reassessment, this essay takes its title from William F. Buckley’s 1974 observation that, while Surrey claimed to analyze tax policy issues with “scientific detachment,” in fact he was a tax “moralist,” whose policy recommendations were “based on a highly articulated set of personal value principles.” Largely agreeing with Buckley as a descriptive matter, the essay considers what Surrey’s work both gained and lost intellectually by hewing so strongly to a set of career-long, deeply held beliefs. Along the way, the essay contrasts Surrey’s moral and intellectual certainty with the skepticism and resistance to grand system-building of Boris Bittker of Yale Law School, Surrey’s only mid-century rival for intellectual leadership of the tax legal academy. ...

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Lesson From The Tax Court: A Reasonable Basis For Deducting Scrubs?

My students—especially those with accounting backgrounds—come to class expecting that tax law is all about bright line rules and lots of calculations.  They are either disappointed, frustrated, or relieved to find that tax law is like other law: it’s words, words that are generally complex, often opaque, and frequently mysterious.  That’s why taxpayers need competent tax practitioners to advise them!

Some tax practitioners are more aggressive and some are more cautious.  Today’s lesson is for the more aggressive ones.  In Raul Romana and Maria Corazon Romana v. Commissioner, T.C. Sum. Op. 2022-9 (June 16, 2022), Judge Carluzzo generously allowed a taxpayer to deduct the cost of a her “scrublike clothing.”

Those of us who are more cautious will disregard this decision.  It’s an outlier and, no, I certainly would not advise my client to start deducting the cost of this type of clothing!  At the same time, however, the opinion may well provide aggressive taxpayers and their advisors protections from penalties if and when they try this trick at home.  The substantive tax lesson is short and sweet.  The penalty lesson is more complex, opaque, and mysterious.

Details below the fold.

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The Top Five New Tax Papers

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

1. [401 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
2. [289 Downloads]  Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, by Reuven Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Utah; Google Scholar; moving to Cardozo)
3. [224 Downloads]  Tax Administration and Technology: From Enhanced to No-Cooperation?, by João Félix Pinto Nogueira (International Bureau of Fiscal Documentation; Google Scholar)
4. [221 Downloads]  Designing an Equitable Border Carbon Adjustment Mechanism, by Ivan Ozai (Osgoode Hall; Google Scholar)
5. [207 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)

Weekly SSRN Tax Article Review And Roundup: Saito Reviews Implicit Legislative Bias And The Mortgage Interest Deduction By Osofsky & Thomas

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Leigh Osofsky (North Carolina; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), Implicit Legislative Bias: The Case of the Mortgage Interest Deduction, 56 U.C. Davis L. Rev. ___ (2022).

Why do so many bad tax policies stick around for so long? The story told is often one of public choice theory and capture. Legislators optimize getting reelected and that leads toward catering to certain interest groups. To be sure, this account does have some explanatory force. But there is often more to the story. Using the mortgage interest deduction (MID) as an example, Leigh Osofsky and Kathleen DeLaney Thomas show that cognitive biases, including implicit racial assumptions and other heuristics, also play a role in keeping this problematic policy. These cognitive biases conspire to create a self-reinforcing system that perpetuates racial inequalities. The article is thus important to broader conversations on how to think about enacting tax policy and for the discussions of racial justice.

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Hemel: The Passthrough Entity Tax Scandal

Daniel J. Hemel (NYU; Google Scholar), The Passthrough Entity Tax Scandal:

Twenty-seven states have enacted laws since 2018 that are designed to provide passthrough entity owners with an unlimited federal tax deduction for state and local business income taxes. These “passthrough entity tax” regimes respond to the December 2017 federal tax law, which imposed a $10,000 cap on the state and local tax deduction. The new state laws generally allow passthrough entities to opt into paying an entity-level state income tax in exchange for a dollar-for-dollar benefit on their owners’ state personal income tax returns. The optional tax has proven to be immensely popular among passthrough entity owners across the country.

But there is a problem with the passthrough entity tax concept: Under the plain text of the Internal Revenue Code, the workaround does not work. The December 2017 law clearly precludes passthrough entities and their owners from deducting state and local income taxes beyond the $10,000-per-individual cap. And the legislative history of the December 2017 law—read in context—aligns with the statutory text.

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Surrey Workshop On Fairness In International Taxation

The two-day University of Surrey Fairness in International Taxation Workshop (program) concludes today:

The nature of international tax policy has changed dramatically in recent years. Twentieth century international tax policy sought to prevent double taxation of income, to treat taxpayers doing business abroad fairly and to mitigate inefficiencies in the allocation of investment. Recently, the focus of international tax policymaking has shifted, aiming to prevent double non-taxation of corporate income and to achieve a fair division of the resulting tax revenue. This is illustrated most prominently by the recent agreement on a global minimum corporation tax rate. As international tax policy raises its ambitions, there is a need for normative theories adequate to the challenges of this new era.

Fairness in International Taxation brings together legal scholars, political theorists and political philosophers to consider both high-level theories of distributive justice and the normative underpinnings and implications of leading policy proposals. The workshop will cover questions such as how to divide tax revenue from multinationals between nations, how to strike a fair balance between combating profiting shifting and respecting national autonomy, and how to tax internationally mobile workers. By combining theoretical approaches to distributive justice with analysis of the political and institutional context of policymaking we aim to develop new accounts of fairness in international taxation.

U.S. presenters include:

Amanda Parsons (Colorado), The Economic Allegiance of Capital Gains:

How to ensure that multinational companies are paying their “fair share” of taxes in the countries in which they create value has been the subject of lively debate within the international tax community in recent years. These debates have led to significant and exciting reforms, namely the OECD/G20 Inclusive Framework. While these reforms represent an important step towards creating a more coherent and equitable international tax system, the current conversations have overlooked an essential fact. Value created by a company’s business activities manifests itself in two ways—as business income and as an increase in the overall market value of the company, which then translates into capital gains income when investors sell their shares. Thus far, the conversation has focused exclusively on how to divide taxing authority over company income, missing half the story. A truly comprehensive reform that ensures fairness and equity in international taxation must address the question of how taxing authority over income stemming from the growth in company value should be allocated amongst countries.

This paper fills this gap and assesses how taxing authority over this capital gains income should be divided amongst countries under the normative principles that have guided international tax law for the past 100 years.

Adam Kern (Law Clerk, Hon. Jed S. Rakoff, U.S. District Judge Court for the Southern District of New York), Optimal Taxation for the World:

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Davis: Taxing Choices

Tessa Davis (South Carolina), Taxing Choices, 16 Fla. Int'l U. L. Rev. __ (2022):

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice or agreement on whether and when it matters. 

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Administering Taxes Democratically?

Clint Wallace (South Carolina; Google Scholar) & Jeff Blaylock (J.D. 2019, South Carolina), Administering Taxes Democratically?, 94 Temp. L. Rev. 49 (2021) (online appendix) (reviewed by Blaine Saito (Northeastern; Google Scholar) here): 

This Article queries how the administrative tax guidance used to implement the Tax Cuts and Jobs Act of 2017 has met the normative commitment to democratic legitimacy that often animates general administrative law. This Article argues that several reforms to the tax administrative process that came to fruition in recent years have failed to advance democratic tax administration. 

This argument is made by analyzing each piece of administrative guidance issued to implement the Tax Cuts and Jobs Act, as compared to similar guidance issued to implement tax cuts in 2001, as well as the Tax Reform Act of 1986. To do this, we created a database of 864 guidance documents issued across six total years in three time periods: 1986–1988, 2001–2003, and 2017–2019. Our examination shows that although tax procedures may now better conform to procedures applied by other administrative agencies, these changes have in some respects set back the pursuit of democratic legitimacy in tax administration.

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Tax Harmony: The Promise And Pitfalls Of The Global Minimum Tax

Reuven S. Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Utah, moving to Cardozo; Google Scholar), Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, 43 Mich. J. Int'l L. __ (2022):

The rise of globalization has become a double-edged sword for countries seeking to implement a beneficial tax policy. On one hand, there are increased opportunities for attracting foreign capital and the benefits that increased jobs and tax revenue brings to a society. However, there is also much more tax competition among countries to attract foreign capital and investment. As tax competition has grown, effective corporate tax rates have continued to be cut, creating a “race-to-the-bottom” issue.

In 2021, 137 countries forming the OECD/G20 Inclusive Framework on BEPS passed a major milestone in reforming international tax by successfully introducing the framework of a global minimum corporate tax, known as Pillar Two. It aims to set a floor for corporate tax rates with various corrective measures so that multinational enterprises’ income will be taxed once in either source country or residence country at a substantive tax rate. Hence, Pillar Two is the first implementation of the “single tax principle” at the global level. Because Pillar Two requires an unprecedented amount of coordination among countries, it is important to understand Pillar Two thoroughly so that countries can maneuver the challenges of implementation, while still enjoying the ultimate benefit that would come from this global tax harmony.

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Lesson From The Tax Court: How To Tell When Land Is Held As A Capital Asset

When a taxpayer buys land and later sells it, the character of the resulting gain or loss will depend on whether taxpayer held the land as an investment or instead held it like inventory, to be sold to customers as part of a trade or business.  It is not always easy to tell how the land is being held and courts look at a variety of factors.

The lesson I take from William E. Musselwhite Jr. and Melissa Musselwhite v. Commissioner, T.C. Memo. 2022-57 (June 8, 2022) (Judge Ashford), is that how the taxpayer self-reports the activity in years prior to the year of disposition is one important factor in determining when land is held as investment.  There, Mr. Musselwhite acquired four lots in what was to become a residential development.  No development happened.  For years he consistently reported holding the lots for investment.  But when he eventually sold them for a big loss he and his wife reported the loss as ordinary, claiming on that return that he held the land for development.  In an informative opinion, Judge Ashford held Mr. Musselwhite to his prior reporting position.  Details below the fold.

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Osofsky & Thomas: Implicit Legislative Bias — The Case Of The Mortgage Interest Deduction

Leigh Osofsky (North Carolina; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), Implicit Legislative Bias: The Case of the Mortgage Interest Deduction, 56 U.C. Davis L. Rev. ___ (2022):

The home mortgage interest deduction is over 100 years old. The deduction has been subject to increasing and, at times, withering criticism from commentators. Scholars have argued that the mortgage interest deduction may be a particularly ineffective and regressive way to subsidize homeownership. Other scholars have made the important point that the mortgage interest deduction has a disparate racial impact: homeowners are disproportionately white, so the deduction disproportionately benefits white people at the expense of people of color. Yet, the mortgage interest deduction has retained remarkable and costly staying power despite all the critiques.

How has the mortgage interest deduction persisted over a century, despite extensive critique? We argue that an underappreciated part of the story of the mortgage interest deduction is how its very creation arose out of implicit racial bias and other cognitive biases. First, scholars and policymakers ignored the racialized history of homeownership in the United States and relied on racist tropes in studying the potential economic benefits of the deduction. After such associations occurred, policymakers misattributed to homeownership benefits that were really, at least in part, benefits that flowed from whiteness. Perceiving positive benefits from homeownership, legislators viewed it as a good worth subsidizing through the tax system. Cognitive biases such as confirmation bias then made it unlikely that, once in place, the mortgage interest deduction would be substantially changed.

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The Top Five New Tax Papers

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

1. [463 Downloads]  A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, by Andrew Granato (J.D.|Ph.D., Yale; Google Scholar)
2. [364 Downloads]  Tax Neutrality Regimes and GloBE, by Leopoldo Parada (Leeds; Google Scholar)
3. [209 Downloads]  Designing an Equitable Border Carbon Adjustment Mechanism, by Ivan Ozai (Osgoode Hall; Google Scholar)
4. [207 Downloads]  Tax Harmony: The Promise and Pitfalls of the Global Minimum Tax, by Reuven Avi-Yonah (Michigan; Google Scholar) & Young Ran (Christine) Kim (Utah; Google Scholar; moving to Cardozo)
5. [162 Downloads]  Preventing Unacceptable Tax Treaty Overrides, by Craig Elliffe (Auckland; Google Scholar)

17th Annual Junior Tax Scholars Workshop Concludes Today At Illinois

Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Crisis Lawmaking, Automatic Stabilizers, and Democracy
Commentators: Blaine Saito (Northeastern; Google Scholar), Christine Speidel (Villanova; Google Scholar)

Andrew Appleby (Stetson; Google Scholar), Digital Property Taxation
Commentators: Hayes Holderness (Richmond), Shelly Layser (Illinois; Google Scholar; moving to San Diego)

Amanda Parsons (Colorado), The Economic Allegiance of Capital Gains
Commentators: Jonathan Choi (Minnesota; Google Scholar), Eleanor Wilking (Cornell)

Jeesoo Nam (USC; Google Scholar), Just Taxation of Crime: Should the Commission of Crime Change One’s Tax Liability?
Commentators: Blaine Saito, Gaga Gondwe (NYU, moving to Wisconsin)

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Galler's Tax Opinion Policies And Procedures

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Linda Galler (Hofstra), Tax Opinion Policies and Procedures, 75 Tax Law. 443 (2022).

In Tax Opinion Policies and Procedures, Linda Galler analyzes and discusses the results of a 2021 survey of tax professionals’ approaches to opinion practice. In this fourteen-question survey, the American College of Tax Counsel (ACTC) asked its limited membership of lawyers and accountants about their firms’ procedures for reviewing and issuing opinions. Although the ACTC survey’s results are more impressionistic than comprehensive, Galler notes that the survey “provides an excellent starting point” for establishing the current landscape of tax opinion practice (473). After detailing the form and function of tax opinions, as well as ethical considerations in opinion practice, Galler highlights the ACTC survey’s critical results and offers various recommendations for firms and future study.

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17th Annual Junior Tax Scholars Workshop Kicks Off Today At Illinois

Gaga Gondwe (NYU, moving to Wisconsin), The Black Tax: How the Charitable Contribution Subsidy Reinforces Black Poverty, 76 Tax L. Rev. ___ (2023)
Commentators: Jeesoo Nam (USC; Google Scholar), Goldburn Maynard (Indiana-Kelley; Google Scholar)

Hayes Holderness (Richmond), Individual Home-Work Assignments for State Taxes
Commentators: Andrew Appleby (Stetson; Google Scholar), Shelly Layser (Illinois; Google Scholar; moving to San Diego)

Shelly Layser, Fighting the Affordable Housing Crisis Through State-Federal Tax (Dis)Conformity
Commentators: Andrew Appleby, Hayes Holderness

Blaine Saito (Northeastern; Google Scholar), Public Tax Actors
Commentators: Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Jeesoo Nam

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Mason: Does The Prohibition Of State Aid Limit Tax Competition?

Ruth Mason (Virginia; Google Scholar), Does the Prohibition of State Aid Limit Tax Competition?:

At the inception of a new and potentially transformative type of tax enforcement, this Article reviews the goals underlying the prohibition on state aid and whether they properly encompass limitations on tax competition. To explore this question, this Article examines treaty text and structure, doctrine, and policy arguments for and against using state aid to curb tax competition. It concludes that the Commission’s expansion of state-aid doctrine to limit tax competition improperly constrains Member State tax autonomy, arrogates tax policy power to the unelected Commission, and increases legal uncertainty. This Article urges the Court of Justice to clarify that preventing tax competition is not an independent goal of state-aid enforcement, although limits on tax competition may arise instrumentally via a free-trade interpretation of the prohibition of state aid. Unlike the anti-tax-competition interpretation, the free-trade interpretation of the prohibition of state aid is well grounded in history, text, and regulatory guidance.

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Zelinsky: The Case For Letting States Experiment With Private Sector Retirement Savings Plans

Edward A. Zelinsky (Cardozo), How Should Congress Respond to Jarvis? The Case for Letting States Experiment With Private Sector Retirement Savings Plans:

The U.S. Supreme Court has ended the saga of Howard Jarvis Taxpayers Association v. California Secure Choice Retirement Savings Program by declining to review the decision of the U.S. Court of Appeals for the Ninth Circuit. By refusing to review this circuit court decision, the Supreme Court left intact that decision and its holding that ERISA does not block the CalSavers IRA program.

In the wake of these events, some urge the federal government to move into the space occupied by CalSavers and other state programs encouraging less affluent Americans to save for retirement. I instead propose that, the post-Jarvis world, Congress should eschew any mandate that private employers adopt IRAs or other retirement programs for their employees. The states should continue to experiment in this area rather than the federal government imposing a single national pattern. Different states will pursue different courses, thereby testing alternative possibilities. Experimentation by the states will provide information about diverse approaches.

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