Paul L. Caron
Dean




Tuesday, November 30, 2021

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.  Here is the new list (through November 1, 2021) 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)  203,642 1 Reuven Avi-Yonah (Michigan) 8,180
2 Dan Shaviro (NYU) 123,837 2 Daniel Hemel (Chicago) 4,706
3 Lily Batchelder (NYU) 123,137 3 Lily Batchelder (NYU) 4,658
4 Daniel Hemel (Chicago) 122,232 4 David Kamin (NYU) 4,211
5 David Gamage (Indiana-Bloom.) 120,170 5 Bridget Crawford (Pace) 4,184
6 Darien Shanske (UC-Davis) 113,104 6 Kim Clausing (UCLA)     3,944
7 David Kamin (NYU) 110,865 7 D. Dharmapala (Chicago) 3,346
8 Cliff Fleming (BYU)    106,579 8 Ruth Mason (Virginia) 3,129
9 Manoj Viswanathan (UC-Hastings) 103,426 9 Richard Ainsworth (Boston Univ.) 2,682
10 Rebecca Kysar (Fordham) 102,517 10 David Gamage (Indiana-Bloom.) 2,632
11 Ari Glogower (Ohio State) 101,869 11 Zachary Liscow (Yale) 2,524
12 Michael Simkovic (USC) 46,038 12 Margaret Ryznar (Indiana-Indy)   2,390
13 D. Dharmapala (Chicago) 45,841 13 Darien Shanske (UC-Davis)  2,288
14 Paul Caron (Pepperdine) 38,834 14 Robert Sitkoff (Harvard) 2,264
15 Louis Kaplow (Harvard) 35,870 15 Dan Shaviro (NYU) 2,179
16 Richard Ainsworth (Boston Univ.) 33,587 16 Yariv Brauner (Florida) 2,152
17 Bridget Crawford (Pace) 29,420 17 Louis Kaplow (Harvard) 2,005
18 Ed Kleinbard (USC) 28,191 18 Hugh Ault (Boston College) 1,848
19 Vic Fleischer (UC-Irvine) 27,859 19 Ari Glogower (Ohio State) 1,772
20 Robert Sitkoff (Harvard) 27,335 20 Brad Borden (Brooklyn) 1,759
21 Brad Borden (Brooklyn) 27,066 21 Gregg Polsky (Georgia) 1,522
22 Jim Hines (Michigan) 26,180 22 Francine Lipman (UNLV) 1,481
23 Ted Seto (Loyola-L.A.) 25,257 22 Shu-Yi Oei (Boston College)  1,457
24 Ruth Mason (Virginia) 24,954 24 Michael Simkovic (USC) 1,416
25 Katie Pratt (Loyola-L.A.) 24,841 25 Vic Fleischer (UC-Irvine) 1,398

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November 30, 2021 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink

Avi-Yonah: A Different Way to Tax Stock Buybacks

Reuven Avi-Yonah (Michigan), A Different Way to Tax Stock Buybacks, 173 Tax Notes Fed. 1107 (Nov. 22, 2021):

Tax Notes Federal (2020)In this article, Avi-Yonah reviews the Build Back Better Act, which would impose a 1 percent excise tax on corporate stock buybacks. He argues that while the measure is an effective way to raise revenue from high-income taxpayers, it will not address the main tax problem with buybacks: the tax exemption for foreign shareholders, which Congress should reconsider.

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November 30, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Monday, November 29, 2021

Salib: The Pigouvian Constitution

Peter N. Salib (Houston; Google Scholar), The Pigouvian Constitution, 88 U. Chi. L. Rev. 1081 (2021): 

How can lawmakers reduce the skyrocketing rate of gun deaths in the United States? How can they stymie the spread of viral fake news stories designed to undermine our elections? Certain constitutionally protected activities—like owning a gun or speaking online—can generate social harms. Yet when lawmakers enact regulations to reduce those harms, they are regularly struck down as unconstitutional. Indeed, the very laws designed to most aggressively reduce social harms—like total criminal bans—are the least likely to be upheld. As a result, regulators appear stuck with an unpleasant choice—regulate constitutionally or effectively, but not both.

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November 29, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Mitchell: State Income Tax Rankings

Dan Mitchell, Ranking State Income Taxes:

Motivated in part by an excellent graphic that I shared in 2016, I put together a five-column ranking of state personal income tax systems in 2018.

Given some changes that have since occurred, it’s time for a new version. The first two columns are self explanatory and columns 3 and 5 are based on whether the top tax rate on households is less than 5 percent (“Low Rate”) or more than 8 percent (“Class Warfare”).

Mitchell

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November 29, 2021 in Tax, Tax News | Permalink

Jason Oh Named Lowell Milken Chair In Law At UCLA

Oh Receives Faculty Chair Appointment:

Oh (2021)UCLA School of Law Professor Jason Oh has received a faculty chair appointment in recognition of his substantial contributions to the study of tax law. ...

Faculty chairs acknowledge the distinction of the law school’s outstanding professors and are made possible by the incredible generosity of UCLA Law’s alumni and friends. UCLA Law has 69 full-time faculty members and 35 endowed chairs. ...

Oh has been appointed to the Lowell Milken Chair in Law. A member of the UCLA Law faculty since 2012 and the faculty co-director of UCLA Law’s Lowell Milken Institute for Business Law and Policy, he is an authority in tax policy and public finance. His record of scholarship and policymaking features multiple publications, appearances in the media, and testimonies before Congress. Oh also serves on the board of directors of the National Tax Association. The Lowell Milken Chair in Law was endowed in 2020 with a $1 million gift to support the career development of an emerging leader in the tax or business law areas. ...

Before joining UCLA Law, Oh was a tax attorney at Wachtell, Lipton, Rosen & Katz and an acting assistant professor of tax law at NYU School of Law. He earned his B.A. from Harvard University and J.D. from Harvard Law School.

November 29, 2021 in Legal Education, Tax, Tax Prof Moves | Permalink

Lesson From The Tax Court: Who Is An IRS Employee's Immediate Supervisor For §6751 Penalty Approval?

Camp (2021)Today’s lesson involves yet more litigation over IRS compliance with the penalty approval process required by the formerly toothless §6751(b)(1).  In Sand Investment Co., LLC, et al. v. Commissioner, 157 T.C. No. 11 (Nov. 23, 2021) (Judge Lauber), the Tax Court continues teaching us the scope and operation §6751(b), a series of lessons it started back in 2017 when its decision in Graev v. Commissioner, 149 T.C. 485 (2017), gave the statute sharp teeth.  Among other requirements, the statute says approval must come from an IRS employee's “immediate supervisor.”  In today’s case, the IRS employee who proposed a bunch of penalties had two supervisors but only one definitely signed timely.  Judge Lauber finds that function trumps form in identifying which of the two supervisors was the right one to approve the proposed penalties.  This is a short lesson, and also one that will may be rendered moot.  Legislation passed by the House and now before the Senate de-fangs §6751(b).  Details below the fold.

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November 29, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

TaxProf Blog Holiday Weekend Roundup

Sunday, November 28, 2021

The Top Five New Tax Papers

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

  1. SSRN Logo (2018) [296 Downloads]  The Tax Gap's Many Shades of Gray, by Daniel Hemel (Chicago; Google Scholar), Janet Holtzblatt (Tax Policy Center) & Steve Rosenthal (Tax Policy Center)
  2. [210 Downloads]  The 2021 Compromise, by Ruth Mason (Virginia; Google Scholar) (reviewed by Charlotte Crane (Northwestern; Google Scholar) here)
  3. [194 Downloads]  Implementing an International Effective Minimum Tax in the EU, by Joachim Englisch (Münster) & Johannes Becker (Münster; Google Scholar)
  4. [188 Downloads]  Colorblind Tax Enforcement, by Jeremy Bearer-Friend (George Washington; Google Scholar)
  5. [169 Downloads]  Slicing the Shadow: A Proposal for Updating U.S. International Taxation, by Reuven Avi-Yonah (Michigan; Google Scholar)

November 28, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, November 27, 2021

This Week's Ten Most Popular TaxProf Blog Posts

Break Into Tax: Capital Gains & Losses — An Introduction

Learn or review the building blocks of capital gains & losses. This video covers the 3 elements needed for a gain or loss to be "capital" rather than "ordinary," including what constitutes a "capital asset." It also discusses holding period. Professor Lederman & Professor Emily Cauble co-host. Planned future videos will cover the capital gains preference and the limitation on capital losses.

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November 27, 2021 in Legal Education, Tax | Permalink

Friday, November 26, 2021

Next Week’s Tax Workshops

Next Week's Tax WorkshopsTuesday, November 30: Steven Dean (Brooklyn) & Dana Brakman Reiser (Brooklyn; Google Scholar) will present For-Profit Philanthropy as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle.

Tuesday, November 30: Alan Auerbach (UC-Berkeley; Google Scholar) will present Tax Policy Design With Low Interest Rates as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro

Wednesday, December 1: Victor Fleischer (UC-Irvine; Google Scholar) will present Tax Policy - Legislative Updates on behalf of the UC-Irvine Graduate Tax Program. If you would like to attend, please contact taxpolicy@law.uci.edu

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November 26, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Tax Policy In The Biden Administration

Thursday, November 25, 2021

WKRP In Cincinnati Thanksgiving Turkey Drop

WSJ Refuses To Cancel Its Annual Thanksgiving Editorials

Wall Street Journal editorial, Censoring the Pilgrims:

WSJ OpinionNo doubt it was only a matter of time. The progressives have come for our annual Thanksgiving editorials. They won’t succeed, but we thought we’d share the tale with readers for an insight into the politicization of everything, even Thanksgiving.

Since 1961 we’ve run a pair of editorials written by our former editor Vermont Royster. The first is a historical account about the Pilgrims in 1620 as related by William Bradford, a governor of Plymouth Colony. The second is a contemporary contrast from the mid-20th century about the progress a prosperous America has made that we can all be thankful for.

The editorials are popular with readers, who tell us they appreciate the sentiments about hardship and gratitude during what should be a unifying national holiday. For decades we’ve run them with nary a discouraging word.

But we live in a new era when the left sees nearly everything through the reductive lens of identity politics. It sees much of American history as a racist project that should be erased. This is the motivation of a petition campaign to censor the Pilgrim editorial.

The effort comes via Change.org, a website that calls itself “the world’s platform for change.” It mobilizes campaigns to promote progressive causes. The petition driver is Randy Kritkausky, an author who writes about Native Americans. His petition has gathered some 50,000 signatures and here’s its argument:

Tell the Wall Street Journal that it’s 2021. It’s time to stop publishing 17th century racism. ...

We don’t mind giving critics a chance to make their case, but we won’t bend to political demands for censorship. We will run the editorials as usual this week.

Wall Street Journal op-ed:  Don’t Let Ideologues Steal Thanksgiving, by Melanie Kirkpatrick (Hudson Institute):

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November 25, 2021 in Legal Education, Tax | Permalink

Happy Thanksgiving, Pepperdine

Pepperdine

November 25, 2021 in Legal Education, Tax | Permalink

Avi-Yonah Posts Three New International Tax Papers On SSRN

Reuven Avi-Yonah (Michigan; Google Scholar), Slicing the Shadow: A Proposal for Updating U.S. International Taxation:

This article advances a proposal for market-based formulary apportionment.

Gucci Gulch Redux: The Problems of Wyden Proposal:

This paper addresses the problems of Sen Wyden’s international tax reform proposal.

The New International Tax Regime:

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November 25, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, November 24, 2021

Rosenbloom & Shaheen: Toulouse — No Treaty-Based Credit?

H. David Rosenbloom (Caplin & Drysdale; NYU) & Fadi Shaheen (Rutgers; Google Scholar), Toulouse: No Treaty-Based Credit?, 104 Tax Notes Int'l 417 (Oct. 25, 2021):

Tax Notes Int'lThis article maintains that the U.S. Tax Court’s decision in Toulouse [v. Commissioner, 157 T.C. No. 4 (2021)]— that U.S. tax treaties with France and Italy do not provide a treaty-based foreign tax credit against the net investment income tax — is mistaken.

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November 24, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Kim: Taxing Teleworkers

Young Ran (Christine) Kim (Utah; Google Scholar), Taxing Teleworkers, 55 U.C. Davis L. Rev. __ (2021):

UC Davis Law ReviewSince COVID-19 has forced many governments to restrict travel and impose quarantine requirements, telework has become a way of life. The shift towards teleworking is raising tax concerns for workers who work for employers located in another state than where they live. Most source states where these employers are located could not have taxed income of out-of-state teleworkers under the pre-pandemic tax rules. However, several source states have unilaterally extended their sourcing rule on these teleworkers, resulting in unwarranted risk of double taxation — once by the residence state and again by the source state. At this time, there is no uniform guideline by state or federal governments.

Recently, New Hampshire, supported by fourteen other states, asked the U.S. Supreme Court to exercise its original jurisdiction challenging Massachusetts’ telecommuting taxes of nonresident teleworkers. Tax commentators believed this case would be one of the most significant tax decisions in recent years, but the Supreme Court declined to hear it. New Jersey also opposes New York’s long-standing telecommuting taxes under the “convenience of the employer” rule. This Article examines the constitutional challenges of maintaining pre-pandemic work arrangements for tax purposes, arguing that a source state’s extraterritorial assertion to tax nonresident teleworkers’ income likely violates the Dormant Commerce and Due Process Clauses. Also, this Article finds the Supreme Court’s decision not to exercise original jurisdiction dissatisfying in light of the substantial increase in remote work.

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November 24, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Lederman: Best Practices In Tax Rulings Transparency

Leandra Lederman (Indiana; Google Scholar), Best Practices in Tax Rulings Transparency:

Tax rulings reflect agreement by a tax administration to a particular tax treatment of a planned transaction. They provide certainty to taxpayers and the government, lowering costs on both sides. Such rulings are therefore used by many countries. Yet, secrecy that is followed by leaks and criticism is a recurring aspect of these rulings. Perhaps most well known in this regard is the 2014 LuxLeaks scandal. LuxLeaks revealed numerous tax rulings issued by the European country of Luxembourg containing what the press sometimes termed “sweetheart deals” between the Luxembourg tax authority and multinational companies. The United States has also experienced embarrassing revelations in the tax rulings context, such as during the period before it began disclosing anonymized versions of letter rulings.

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November 24, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

The Renewed Need For Guidance Addressing Partnership 754 Election Revocations

Dion S. Toledo (J.D. 2020, UC-Irvine), Note, The Renewed Need for Guidance Addressing Partnership 754 Election Revocations, 11 U.C. Irvine L. Rev. 999 (2020):

UC Irvine Law ReviewThe section 754 election of the Internal Revenue Code allows partnerships to make basis adjustments to avoid potentials for double taxation that can arise following transfers of partnership interests and distributions of partnership property. Once made, a 754 election applies to all future tax years and is revocable only with the consent of the Internal Revenue Service (Service). One subsection of the Treasury Regulations addresses when the Service might approve or deny a partnership’s request to revoke a 754 election. Despite the process contemplated in this regulation, until recently, partnerships could default out of a 754 election without Service approval through a technical termination. The lack of recorded application of the regulation implies that partnerships have largely not needed to rely on—and the Service has not needed to apply—the 754 election revocation regulation.

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November 24, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, November 23, 2021

Herzfeld Presents Taxes Are Not Binary: The Unfortunate Consequences Of Splitting Taxes Into Arbitrary Categories Today At NYU

Mindy Herzfeld (Florida) presents Taxes Are Not Binary: The Unfortunate Consequences of Splitting Taxes Into Arbitrary Categories at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

HerzfeldBinary categorization of a “tax” into one of two alternative categories has important substantive implications in a number of disciplines, including constitutional law, tax law, accounting, and trade. Constitutional references to direct tax have been important through American history, factoring into the legality of various new types of taxes and now raising their head again in the context of current debates over the wealth tax. The binary separation of taxes into two categories of direct and indirect taxes also has important consequences in the trade area, as trade agreements generally categorize border adjusted direct taxes as export subsidies but generally bless border adjusted indirect taxes. A separate binary distinction exists between the definition of income and non-income tax. Within the U.S. federal income tax law, the split of a tax into an income or non-income tax has important consequences for creditability of foreign taxes, with large implications for companies’ bottom lines.  In the accounting world, the consequences of treatment of an income tax or non-income tax are relevant for financial statement purposes – the latter is classified in a separate line item in the income statement, while the former is “above the line” and lumped into gross income.

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November 23, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

WSJ: AmEx Pitched Business Customers A Tax Break That Doesn’t Add Up

Wall Street Journal, AmEx Pitched Business Customers a Tax Break That Doesn’t Add Up:

AmExBusinesses were told they could deduct transaction fees while earning tax-free cash rewards.

The pitch went out to eye doctors, McDonald’s franchisees and payroll companies: “Reduce your taxable income burden to Uncle Sam.”

In phone calls, emails and in-person meetings with thousands of business owners, American Express salespeople laid out the strategy. Use AmEx to pay your employees and suppliers, they said. You’ll have to pay a fee, but you’ll come out ahead. That’s because you can earn rewards on the transaction that can be converted into untaxed cash, while also deducting the transaction fees for tax purposes.

The pitch helped AmEx bring in billions of dollars of transaction volume since at least 2018, according to people familiar with the matter and documents reviewed by The Wall Street Journal. But there was a problem: The strategy relied on a shaky interpretation of how tax law treats rewards points.

In July, a whistleblower filed a report with the Internal Revenue Service alleging that AmEx knowingly persuaded business owners to underreport their income and taxes.

This is “a big company encouraging tax wrongdoing,” said Gregory Lynam, co-founder of Lynam Knott, the law firm that filed the report on the whistleblower’s behalf. It “promotes a tax shelter that doesn’t work.”

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November 23, 2021 in Tax, Tax News | Permalink

NY Times: Companies Love To Buy Back Their Stock. A Tax Could Deter Them.

New York Times, Companies Love to Buy Back Their Stock. A Tax Could Deter Them.:

Supporters of the Biden buyback tax say it will be good for the economy. Skeptics say it will hurt investment.

Corporate America has been feeding a stock buyback boom for decades, with companies spending trillions of dollars to repurchase their shares without paying any taxes on those transactions.

That could soon change.

In President Biden’s roughly $2 trillion Build Back Better Act, which narrowly passed the House on Friday but faces a tough fight in the Senate, Democrats have proposed a 1 percent tax on stock buybacks. Although it may not seem like much, the tax is a way to raise as much as $124 billion over 10 years, according to government estimates, and could help pay for the social spending and climate package.

Both supporters and critics of the proposed surcharge say it could alter the behavior of companies, but in ways that would have very different consequences for the economy.

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November 23, 2021 in Tax, Tax News | Permalink

Call For Articles: The Tax Lawyer

ABA Tax Lawyer (2021)The Tax Lawyer is currently accepting submissions for its 2022 Spring and Summer issues. Submit your work by early December to be considered for the Spring issue.

Why publish in The Tax Lawyer?

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November 23, 2021 in ABA Tax Section, Scholarship, Tax, Tax Scholarship | Permalink

Monday, November 22, 2021

Hemel & Weisbach: The Behavioral Elasticity Of Tax Revenue

Daniel Hemel (Chicago; Google Scholar) & David Weisbach (Chicago; Google Scholar), The Behavioral Elasticity of Tax Revenue, 13 J. Legal Analysis 381 (2021):

This article presents a measure of the efficiency consequences of changes to tax policies that inform a wide range of tax law debates. Building upon recent extensions to the “elasticity of taxable income” concept, we clarify the relationship among revenue effects, administrative costs, and compliance costs. The resulting measure—the behavioral elasticity of tax revenue (BETR)—captures the change in total resources resulting from marginal changes in tax rates, the tax base, or tax enforcement. We illustrate the BETR’s utility through a series of case studies.

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November 22, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Hemel: Make The Expanded Child Tax Credit Permanent With This One Easy Trick

Daniel Hemel (Chicago; Google Scholar), Make the Expanded Child Tax Credit Permanent With This One Easy Trick:

Here's how Democrats can significantly reduce child poverty over the long term.

The Build Back Better Act—which passed the House by a 220-213 vote on Friday—makes important changes to the child tax credit. It extends the $3000-per-child credit ($3600 for children under age 6) through 2022. And it makes the credit fully refundable on a permanent basis. By one estimate, these changes will reduce child poverty by more than 40 percent within a single year.

Unfortunately, the $3000 credit (or $3600 for young children) won’t last long. In 2023, the credit amount will fall back to $2000 per child. And starting in 2026, due to a sunset provision in the Trump Tax Cuts and Jobs Act, the credit will fall to $1000 per child. Ideally, congressional Democrats would have agreed to make the entire child tax credit expansion permanent. They could have offset the cost by taxing unrealized gains at death, eliminating the passthrough-deduction giveaway, and raising the corporate income tax rate to somewhere in the mid- to high-20s. Alas, some Democrats decided that they would rather let millions of children languish in poverty than enact common-sense revenue-raising tax reforms.

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November 22, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Lesson From The Tax Court: How To Mess Up Your Checkbook IRA

Camp (2021)The idea that freedom means control over your own destiny s arguably the most defining characteristic of American culture.  It is most certainly the basis on which various companies promote “checkbook IRAs.”  If you Google that term you will find a gaggle of companies urging people to take full control of their retirement funds, to free themselves from restrictive IRA custodians. The companies promote structures that purport to allow taxpayers maximum freedom over their investment decisions.  Freedom equals control. 

In Andrew McNulty and Donna McNulty v. Commissioner, 157 T.C. No. 10 (Nov. 18, 2021)(Judge Goeke) we learn that too much control messes up a checkbook IRA.  There, Mr. and Ms. McNulty created a checkbook IRA, funded it with transfers from their other retirement accounts, and then used the money to buy gold coins which they stored in their home.  The Tax Court said that last bit—storing the physical coins in their home—was too much control and thus the receipt of the coins was a taxable distribution to them.  While the taxpayers crossed the line in this case, it may not be altogether clear where that line is.  How far can a taxpayer go before they mess up their checkbook IRA?  Let’s see what we can learn.  Details below the fold.

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November 22, 2021 in Bryan Camp, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (1)

U.S. Tax Court's Tax Trailblazers: Justice Shawna Baker

U.S. Tax Court's Diversity & Inclusion Series, Tax Trailblazers: Mentoring the Next Generation:

Baker 2Please join the United States Tax Court for the next in its Tax Trailblazers series. November’s webinar will honor Native American Heritage Month and focus on Justice Shawna S. Baker of the Cherokee Nation Supreme Court. Today at 7:00-8:15 PM EST (register here).

Shawna S. Baker is a Cherokee Nation Supreme Court Justice and managing attorney of Family Legacy and Wealth Counsel, PLLC. She is the first member of the LGBT community and only the third woman ever confirmed to the Cherokee Nation Supreme Court.

Before being appointed, Justice Baker served as a litigation associate, an attorney and a managing partner at various law firms, a trustee of a charitable organization, and an assistant professor at the Florida Coastal School of Law.

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November 22, 2021 in Legal Ed News, Legal Education, Tax, Tax News | Permalink

TaxProf Blog Weekend Roundup

Sunday, November 21, 2021

Church Taxes And The Original Understanding Of The Establishment Clause

Mark Storslee (Penn State; Google Scholar), Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Pa. L. Rev. 111 (2021):

Penn Law ReviewSince the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from ‘aiding’ or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe.

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November 21, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

The Top Five New Tax Papers

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

  1. SSRN Logo (2018) [284 Downloads]  The Tax Gap's Many Shades of Gray, by Daniel Hemel (Chicago; Google Scholar), Janet Holtzblatt (Tax Policy Center) & Steve Rosenthal (Tax Policy Center)
  2. [209 Downloads]  The 2021 Compromise, by Ruth Mason (Virginia; Google Scholar) (reviewed by Charlotte Crane (Northwestern; Google Scholar) here)
  3. [188 Downloads]  Implementing an International Effective Minimum Tax in the EU, by Joachim Englisch (Münster) & Johannes Becker (Münster; Google Scholar)
  4. [177 Downloads]  Colorblind Tax Enforcement, by Jeremy Bearer-Friend (George Washington; Google Scholar)
  5. [165 Downloads]  Prepaid Death, by Victoria Haneman (Creighton; Google Scholar)

November 21, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, November 20, 2021

This Week's Ten Most Popular TaxProf Blog Posts

Break Into Tax: Introduction To Deductions

Learn or review where deductions are taken in computing an individual's federal income tax liability! This video covers (1) above-the-line deductions, (2) below-the-line deductions, (3) itemized deductions, and (4) miscellaneous itemized deductions. It uses an animated Venn diagram to help illustrate how each of these categories of deductions relate to each other. The video also covers how a tax deduction differs from a tax credit and the basics of computing an individual taxpayer's taxable income. Professor Lederman & Professor Ariel Jurow Kleiman co-host. The end of the video briefly shows the main illustrations and animation again.

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November 20, 2021 in Legal Education, Tax | Permalink

Friday, November 19, 2021

Weekly SSRN Tax Article Review And Roundup: Speck Reviews Automated Government For Vulnerable Citizens — Intermediating Rights

This week, Sloan Speck (Colorado; Google Scholar) reviews a new paper by Sofia Ranchordás (University of Groningen) & Luisa Scarcella (University of Antwerp), Automated Government for Vulnerable Citizens: Intermediating Rights, 30 Wm. & Mary Bill Rts. J. ___ (2021).

Sloan-speckIn Automated Government for Vulnerable Citizens, Sofia Ranchordás and Luisa Scarcella survey the landscape of digital governmental services, concluding that, while these automated mechanisms may enhance convenience and efficiency for some, they inflict differential effects on vulnerable populations and often entrench existing disparities. Prominent in the authors’ analysis (and in governments’ digital transitions) is tax compliance: in particular, electronic return preparation and algorithmic enforcement. Ranchordás and Scarcella conclude by offering various prescriptions to ameliorate the digital revolution’s disproportionate harms and promote humanity—literal and metaphorical—in public administration.

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November 19, 2021 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Tax Policy In The Biden Administration

Next Week’s Tax Workshop

Next Week's Tax Workshops - twitterTuesday, November 23: Mindy Herzfeld (Florida) will present Taxes Are Not Binary: The Unfortunate Consequences of Splitting Taxes Into Arbitrary Categories as part of the NYU Tax Policy and Public Finance Colloquium. If you would like to attend, please contact Daniel Shaviro.

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November 19, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Workshops | Permalink

NTA 114th Annual Conference On Taxation

NTA 2

Highlights of this week's National Tax Association 114th Annual Conference on Taxation (full program here):

Wednesday:

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November 19, 2021 in Conferences, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Call For Student Tax Papers: 2022 Chris Bergin Award For Excellence In Writing

Christopher E. Bergin Award for Excellence in Writing:

Tax NotesThe 2022 submission period for the Christopher E. Bergin Award for Excellence in Writing is now open! This annual award recognizes superior student writing on unsettled questions in tax law or policy. Learn more about the competition guidelines:

  • Eligibility: Applicants must be enrolled in an accredited undergraduate or graduate program during the academic year. Each student may submit only one paper.
  • Format: Entries should be a minimum of 2,500 words and a maximum of 12,000 words, including footnotes. Citations should be formatted as footnotes in accordance with the current version of The Bluebook: A Uniform System of Citation. Bibliographies and reference lists are prohibited. Articles should be submitted as Microsoft Word documents.

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November 19, 2021 in Legal Ed News, Legal Education, Tax, Tax Analysts, Tax News | Permalink

Thursday, November 18, 2021

Aprill Presents Federal Charities: Blurring The Line Between Public And Private Today At Indiana

Ellen Aprill (Loyola-L.A.; Google Scholar) presents Federal Charities: Blurring the Line between Public and Private at Indiana today as part of its Tax Policy Colloquium hosted by Leandra Lederman:

Aprill-Ellen-faculty-profile-2000pxThe standard view of the relationship between nonprofits and government assumes that the two are separate and distinct. In the late 1990’s, for example, Professor Evelyn Brody wrote an influential paper conceptualizing government and charity as competing sovereigns. Similarly, the introduction to the 2017 essay collection Nonprofits and Government: Collaboration and Conflict acknowledges that sometimes governments "set up nonprofit corporations to carry out some public programs."  It points to the Corporation for Public Broadcasting as an example, but implies such a choice seldom occurs. The collection’s first essay, authored by Young and Casey, conveys the common understanding of the relationship: Supplementary, Complementary, or Adversarial? Nonprofit-Government Relations. In the supplementary model, nonprofits fulfil demand for public goods that the government does not, with an inverse relationship between private and government expenditure. In the complementary model, nonprofits partner with government, which often finances them to deliver public goods. If adversarial to government, nonprofits seek to change governmental policy, some urging increased and some decreased governmental operations. But none of these characterizations allow for entities that exhibit characteristics of both government and charity.

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November 18, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Lipman: State And Local Tax Takeaways Redux

Francine Lipman (UNLV; Google Scholar), State and Local Tax Takeaways Redux, 101 Tax Notes State 683 (2021):

Tax-notes-stateOn average, current household incomes are less equal after state and local taxes are imposed than before. Wealthy families pay a significantly lower percentage of their income in state and local taxes on average than low- and middle- income households. Regressive state and local taxes not only erase the progress of federal tax policies that redistribute income, but in some cases they reverse progressivity — causing the most vulnerable families to pay a higher percentage of their income in aggregate taxes than affluent households.

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November 18, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Maryland Hosts Inaugural Carol Tello International Tax Lecture

Maryland
Maryland hosts the Inaugural Carol Tello International Tax Lecture today by Grace Perez-Navarro (Deputy Director, OECD) (register here): 


Grace Perez-Navarro plays a key role in all the OECD’s tax work including the tax challenges of digitalization, the BEPS Project, improving international tax cooperation, and engaging developing countries in OECD tax work. Since joining the OECD in 1997, she has held several key positions, including having led the OECD’s tax work on bank secrecy, e-commerce, harmful tax practices, money laundering and tax crimes, and strengthening all forms of administrative cooperation between tax authorities.

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November 18, 2021 in Conferences, Tax, Tax Conferences | Permalink

Zelinsky: Expand The Taxation Of Educational And Other Charitable Endowments

Edward A. Zelinsky (Cardozo), Expand the Taxation of Educational and Other Charitable Endowments, 173 Tax Notes Fed. 799 (Nov. 8, 2021):

Tax Notes Federal (2020)In this article, Zelinsky argues that section 4968, which imposes an annual tax on the investment income of some college and university endowments, should remain in the tax code as a revenue measure and a harbinger of a world in which all charitable endowments pay annual tax on their investment incomes.

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November 18, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

The Contractual And Tax Implications Of The Phantom Of The Opera

Charles Edward Andrew Lincoln IV (Groningen; Google Scholar), The Contractual and Tax Implications of The Phantom of the Opera, Vand. J. Ent. & Tech. Blog:

PhantomThe substantive story of Gaston Leroux’s The Phantom of the Opera (Le Fantôme de l’Opéra) is largely about contract analysis and whether the managers and “the phantom” have had a “meeting of the minds”—consensus ad idem.

The question is whether the Phantom and the Managers reached a “meeting of the minds” or manifested mutual assent in their contractual remedies.

In short, the plot surrounds new managerial team—Armand Moncharmin and Firmin Richard—at the Palais Garnier have refused to abide by the former managerial team’s contract with the Phantom as successors in kind.

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November 18, 2021 in Legal Education, Scholarship, Tax, Tax Scholarship | Permalink

Wednesday, November 17, 2021

Choi Presents Beyond Purposivism In Tax Law Today At UC-Irvine

Jonathan Choi (Minnesota; Google Scholar) presents Beyond Purposivism in Tax Law at UC-Irvine today as part of its Tax Policy Colloquium:

ChoiConventional wisdom holds that purposivist theories of statutory interpretation solve the problem of tax shelters, because shelters comply with the text but not the purpose of tax statutes. But the predominant form of purposivism in tax scholarship, which combines specific statutory purposes with general structural principles of tax law, cannot separate shelters from ordinary tax planning. Although tax shelters claim benefits that exceed specific purposes and do not align with objective general principles, so do some widely accepted tax strategies.

This Article therefore proposes a new framework to go beyond purposivism in tax law, complementing purposivist techniques with pragmatism or doctrinalism. Pragmatism applies explicit policy judgments when statutory purposes run out; doctrinalism applies rules, like canons of construction, that provide determinate answers when statutory purpose is ambiguous. Pragmatism generally leads to better results in any particular case, while doctrinalism provides taxpayers certainty in planning legitimate transactions.

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November 17, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Soled: Congress Should Codify The IRS’s Voluntary Disclosure Program

Jay A. Soled (Rutgers; Google Scholar), The IRS’s Voluntary Disclosure Program: Need for Codification, 37 Ga. St. U. L. Rev. 957 (2021):

For more than a century, the Internal Revenue Service (IRS) has had a voluntary disclosure program in place. Its purpose is to coax into tax compliance those wayward taxpayers who have committed criminal acts or have been remiss in fulfilling their civic tax-filing obligations. Historically, the voluntary disclosure program has had to strike a difficult balance between being attractive enough to entice tax scofflaws to participate and not being too attractive lest ordinary taxpayers feel that their compliance efforts were for naught.

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November 17, 2021 in IRS News, Scholarship, Tax, Tax Scholarship | Permalink

Avi-Yonah: The Case For Reviving The Corporate AMT

Reuven Avi-Yonah (Michigan), The Case for Reviving the Corporate AMT, 173 Tax Notes Fed. 795 (Nov. 8, 2021):

Tax Notes Federal (2020)In this article, Avi-Yonah examines the bill introduced by Senate Finance Committee member Elizabeth Warren, D-Mass., to revive the corporate alternative minimum tax as a 15 percent tax on corporate book income, and he argues that it is a sensible way to address some problems of the corporate tax system.

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November 17, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Boz Among The Radicals: Charles Dickens And Tax Reform

Stephen Utz (Connecticut), Boz Among the Radicals: Charles Dickens and Tax Reform, 2 British Tax Rev. 221 (2021):

Taxes on consumption items necessary for subsistence burdened the British middle and workings classes heavily throughout the early nineteenth century. The Weekly True Sun urged the Whig government to replace the window tax, not with a house tax, but with an income tax, and urged taxpayers to refuse to pay the window tax. Charles Dickens transcribed the seditious libel trial of the True Sun editors when he was very young and later remembered the Whig indecision on tax policy in a strongly negative editorial of his own. This article describes how Dickens played a prominent role in tax reform that followed.

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November 17, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Tuesday, November 16, 2021

Goodman & Whitten Present Automating The 1040 Today At Georgetown

Lucas Goodman (Office of Tax Analysis, U.S. Treasury Department) & Andrew Whitten (Office of Tax Analysis, U.S. Treasury Department; Google Scholar) present Automating the 1040: How Accurately and for Whom Can We Prepopulate Individual Income Tax Returns? at Georgetown today as part of its Tax Law and Public Finance Workshop hosted by Brian Galle:

Goodman-whittenTo make tax filing more efficient and to redistribute the filing burden, some commentators have proposed having the IRS pre-populate tax returns for individuals. We evaluate this hypothetical policy using a large, nationally representative sample of returns filed for tax year 2019. Between 40 and 50 percent of returns could be accurately pre-populated using information returns and the prior year return. 

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November 16, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Back To The Future: Marriage And Divorce Under The 2017 Tax Act

Mark W. Cochran (St. Mary's), Back to the Future: Marriage and Divorce under the 2017 Tax Act, 51 St. Mary's L.J. 1 (2019):

The Tax Cuts and Jobs Act of 2017 (the 2017 Tax Act) significantly altered the federal tax consequences of marriage and divorce by mostly eliminating the so-called "marriage penalty" from the individual income tax rates and abolishing the deduction for alimony payments. These changes represent the latest congressional tinkering with issues that have persisted since the earliest days of the modem income tax, turning back the clock with regard to taxation for both married and divorced couples. For the first time, since the enactment of the Tax Reform Act of 1969, the rate brackets for married taxpayers filing joint returns are twice as wide as the brackets applicable to unmarried taxpayers. For the first time since 1942, alimony payments are not deductible by the payor and not includable in the recipient's gross income.6 The significance of these changes can best be appreciated by examining their historical context, and this article will undertake that examination

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November 16, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Morriss: Forward Down The Road To Serfdom — International Tax Law As A Means Of Central Planning

Andrew P. Morriss (Texas A&M, George Mason), Forward Down the Road to Serfdom: International Tax Law as a Means of Central Planning:

Friedrich Hayek’s 1944 book, The Road to Serfdom, warned of the dangers to a free society from central planning. Efforts by the rich country clubs of the Organization for Economic Cooperation and Development (OECD) and European Union (EU) to impose new international tax rules through a variety of initiatives aimed at increasing their share of global tax revenues, are leading us further down the road Hayek warned against. These initiatives move us from a world in which the complicated tax issues raised by cross-border transactions and entities is resolved through a complex web of bilateral tax treaties to one in which tax administrations, following OECD- and EU-drafted rules will increasingly intervene in internal organizational decisions of businesses by making the tax consequences independent of the actual organization.

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November 16, 2021 in Scholarship, Tax, Tax Scholarship | Permalink