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Thursday, August 8, 2019

Wallace: Tax Policy And Our Democracy

Clint Wallace (South Carolina), Tax Policy and Our Democracy, 118 Mich. L. Rev. ___ (2019) (reviewing Camille Walsh (Washington), Racial Taxation: Schools, Segregation, and Taxpayer Citizenship, 1869–1973 (University of North Carolina Press 2018), and Anthony C. Infanti (Pittsburgh), Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves (MIT Press 2018)):

Racial SelfishTwo new books explore the many ways in which U.S. tax policies and tax systems have promoted social injustices and continue to do so. In Racial Taxation, Camille Walsh provides a vivid depiction of the under-scrutinized fiscal history of elementary through secondary education in the United States, from the post-Reconstruction era until San Antonio Independent School District v. Rodriguez. In Our Selfish Tax Laws, Anthony Infanti details how existing U.S. Federal tax policies manifest problematic power structures that exclude and disadvantage many if not most taxpayers. Together, these books dissect a variety of flawed tax structures and reveal that tax discrimination grounded in race, gender, heteronormativity, differences in physical ability, and, pervasively, power dynamics, are not a malignant tumor on an otherwise healthy body, but rather are a systemic, pathological affliction on the entire U.S. fiscal state. This essay reviews Walsh’s and Infanti’s work, and builds on the authors’ rich historical and analytical contributions to ask: how can tax policy be reformed so that, rather than betraying and undermining the foundations of American democracy, it works to strengthen democratic institutions and their connection with members of a democratic society?

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August 8, 2019 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Fiscal Democracy In The States: How Much Spending Is On Autopilot?

Tracy Gordon, Megan Randall, C. Eugene Steuerle, Aravind Boddupalli (Tax Policy Center), Fiscal Democracy in the States: How Much Spending is on Autopilot?:

Governors, lawmakers, and journalists often decry constitutional and statutory formulas, federal grant requirements, and court rulings they think excessively limit state budget decisions.

Some observers estimate as much as 70 percent of state spending is “on autopilot,” meaning these constraints are in place before proposals or negotiations begin.

But measuring predetermined state budget commitments is far from straightforward. The federal government explicitly defines “tax expenditures” and “mandatory spending” and reinforces these concepts through the annual budget process. In contrast, few states rigorously and transparently assess the long-term cost of tax breaks and spending programs that are either fixed in size or will grow automatically without policy changes.

In this report, we perform a first-of-its-kind analysis of how much spending was restricted or partially restricted in CaliforniaFloridaIllinoisNew YorkTexas, and Virginia from 2000 to 2015.

Key findings

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

Walker: Employer Losses And Deferred Compensation

David I. Walker (Boston University), Employer Losses and Deferred Compensation:

Most large public companies offer their executives the opportunity to defer the receipt and taxation of their salary or other current compensation until retirement or some other future date, and equity compensation, which also entails deferral of pay and taxation, constitutes a large fraction of the typical executive pay package. Conventional wisdom holds that employer net operating losses (NOLs) improve the joint economics of deferred and equity compensation (henceforth together "deferred compensation") for the parties. However, empirical studies provide little evidence of an association between employer NOLs and deferred compensation use. This paper focuses on two potential explanations for this apparent disconnect. First, this paper shows that the relationship between employer NOLs and the attractiveness of deferred compensation is more complex and less predictable than is generally recognized, that a large NOL position does not necessarily produce a larger driving force for use of deferred compensation, and that in some cases employer NOLs can actually result in poorer deferred compensation economics. As a result, some employers and executives may rationally choose to ignore employer NOLs when making compensation decisions. Second, even if companies are sensitive to the existence of employer NOLs when making compensation decisions, it is not clear that research methods currently in use would detect the sensitivity.

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

My Taxes (And Donald Trump's) Are None of Your Business

Alan B. Morrison (George Washington), My Taxes Are None of Your Business:

One of the underlying principles of our income tax laws is that our tax returns are kept secret and only those who have a legitimate need to know can see them. However, some of the efforts to enable Congress, and perhaps everyone else, to see the tax returns of private citizen Donald J. Trump, may threaten that principle, not just for him, but for everyone else.

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August 8, 2019 in Tax, Tax News | Permalink | Comments (3)

Wednesday, August 7, 2019

Gamage: Five Key Research Findings On Wealth Taxation For The Super Rich

David Gamage (Indiana), Five Key Research Findings on Wealth Taxation for the Super Rich:

This essay summarizes five key findings from the author’s in-progress research evaluating the potential of wealth tax reform proposals for taxing the super rich. These five key findings are as follows:

  1. The existing U.S. tax system does a very poor job of meaningfully taxing the super rich.
  2. There are only two approaches for reform that could plausibly succeed in making it so that the U.S. tax system would meaningfully tax the super rich: wealth taxation and mark-to-market taxation (sometimes known as “accrual” taxation).
  3. Piecemeal reforms to the existing tax system that some have argued for as “progressive alternatives” to wealth tax reforms should be thought of as complements to wealth taxation rather than as competitors.
  4. Much of the public criticism of wealth tax reform proposals ignores recent legal scholarship on valuation methodologies and other implementation design options, to the extent that this criticism mostly only applies to outdated, “straw man” versions of how a modern wealth tax might be implemented.
  5. Concerns about the Supreme Court striking down wealth tax reforms as unconstitutional can be addressed by including fallback options in the wealth tax legislation.

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August 7, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

Haneman: Intergenerational Equity, Student Loan Debt, And Taxing Rich Dead People

Victoria J. Haneman (Creighton), Intergenerational Equity, Student Loan Debt, and Taxing Rich Dead People:

Once upon a time, there was a generation of indentured servants called Millennials. They were beautiful and mysterious and clever and feckless, in the way that all young people can sometimes be. The Millennials had dreams of future careers in which they were near-mystical, all-powerful protectors of the planet, brunching on avocado toast, driving in electric cars, and eradicating golf courses from the earth. Droves of Millennials applied to universities, believing that a diploma was a barrier for entry to advance the careers of which they dreamt. Most were confronted with a conundrum: borrow to subsidize the dream career, with decades of (potentially unaffordable) payments when they were finally employed. The Generation Who Stole the World, commonly referred to as the Baby Boomers, had decided that unlimited access to debt was the most economically sound approach by which to offer equal opportunity in higher education — and the delectable irony of this tale is that the availability of debt caused (or at the very least, accompanied) the skyrocketing of costs. A vicious cycle resulted in an entire generation of educated Millennials having mortgaged their futures, and visibly sagging under the weight of the chains of their debt.

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August 7, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Wayne State Law School Seeks To Hire A Tax Prof

Wayne State LogoWayne State University Law School is seeking to fill up to three tenure-track or tenured faculty positions. One position is for a tax scholar. For the others, we will consider outstanding candidates in any field, but we are especially interested in scholars working in corporations (and related business subjects), civil rights and social justice, criminal law and procedure, and property. We warmly welcome applications from women, members of minority groups, and others who will contribute to the diversity of the faculty. Wayne Law is a vibrant intellectual community in the heart of Detroit. Candidates not listed in the FAR and those with particular interest in Wayne Law should send a cover letter, CV, and any other materials they wish the committee to consider to Professor Christopher C. Lund, Faculty Appointments Committee Chair.

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August 7, 2019 in Tax, Tax Prof Jobs | Permalink | Comments (1)

NY Times: As Mortgage-Interest Deduction Vanishes, Home Buyers And The Housing Market Merely Shrug

New York Times, As Mortgage-Interest Deduction Vanishes, Housing Market Offers a Shrug:

The mortgage-interest deduction, a beloved tax break bound tightly to the American dream of homeownership, once seemed politically invincible. Then it nearly vanished in middle-class neighborhoods across the country, and it appears that hardly anyone noticed. ...

The 2017 law nearly doubled the standard deduction — to $24,000 for a couple filing jointly — on federal income taxes, giving millions of households an incentive to stop claiming itemized deductions.

As a result, far fewer families — and, in particular, far fewer middle-class families — are claiming the itemized deduction for mortgage interest. In 2018, about one in five taxpayers claimed the deduction, Internal Revenue Service statistics show. This year, that number fell to less than one in 10. For families earning less than $100,000, the decline was even more stark.

NYT Mortgage

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August 7, 2019 in Tax, Tax News | Permalink | Comments (0)

Tuesday, August 6, 2019

Cui: The Superiority Of The Digital Service Tax Over Significant Digital Presence Proposals

Wei Cui (University of British Columbia), The Superiority of the Digital Service Tax over Significant Digital Presence Proposals:

Responding to calls for reallocating taxing rights over multinationals’ profits to reflect the place of user value creation, the OECD recently announced a Program of Work to implement international tax reform. I use the European Commission’s 2018 proposal to introduce the “significant digital presence” concept into income tax treaties as an example of the type of approach the OECD favors, and argue that it is inferior to recently proposed digital services taxes (DSTs). DSTs directly address the question of where profits should be allocated and taxed, while SDP proposals subordinate this vital question to superfluous treaty conventions. Global tax coordination deserves better focal points.

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

Kahn: Return Of An Employee’s Claim Of Right Income

Douglas A. Kahn (Michigan), Return of an Employee’s Claim of Right Income, 163 Tax Notes 1819 (2019):

This brief article explains how the 2017 repeal of the miscellaneous itemized deduction affects the operation of section 1341 on an employee’s return of claim of right income.

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

Camp: The Sharp Corners Of ACA Premium Tax Credit Provisions

Bryan Camp (Texas Tech), The Sharp Corners of ACA Premium Tax Credit Provisions, 163 Tax Notes 2001 (June 24, 2019):

The Tax Court has started issuing more and more opinions dealing with disputes over the proper application of the Premium Tax Credit Provisions in §36B. Those opinions show that the Court views §36B as containing no wiggle room to deal with reasonable taxpayer errors in calculating their Premium Tax Credit (PTC). Multiple times one sees the Court writing phrases such as “We are not unsympathetic to petitioners’ plight; however, we are bound by the statute,” and “we cannot ignore the law to achieve an equitable end.”

The Court's doggedly textualist reading results in taxpayers getting hit with really big deficiencies, even when the error is someone else’s fault. Recent cases have done this, turning receipt of lump sum SSDI payments into a “gotcha” game that even reasonable taxpayers will lose if they make the §86(e) election to attribute a lump sum payment ratably over prior years.

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August 6, 2019 in Scholarship, Tax | Permalink | Comments (1)

Joint Tax Committee Releases IRS Disclosures Of Tax Return Information, 2018

Joint Tax CommitteeThe Joint Committee on Taxation has released Disclosure Report For Public Inspection Pursuant to Internal Revenue Code Section 6103(p)(3)(C) For Calendar Year 2018:

Section 6103(p)(3)(C) of the Internal Revenue Code provides that the Secretary of the Treasury shall, within 90 days after the close of each calendar year, furnish to the Joint Committee on Taxation for disclosure to the public a report which provides, with respect to each Federal agency and certain other entities, the number of: (1) requests for disclosure of returns and return information (as such terms are defined in section 6103(b)); (2) instances in which returns and return information were disclosed pursuant to such requests or otherwise; and (3) taxpayers whose returns, or return information with respect to whom, were disclosed pursuant to such requests. In addition, the report must describe the general purposes for which such requests were made.

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August 6, 2019 in Congressional News, Gov't Reports, Tax, Tax News | Permalink | Comments (0)

Monday, August 5, 2019

Morse Reviews Fleischer & Hemel's The Architecture Of A Basic Income

Jotwell (Tax) (2016)Susan Morse (Texas), The Policy Maker’s Guide to a Universal Basic Income (JOTWELL) (reviewing Miranda Perry Fleischer (San Diego) & Daniel J. Hemel (Chicago), The Architecture of a Basic Income, 86 U. Chi. L. Rev. __  (2019) (reviewed by David Elkins (Netanya) here)):

Miranda Fleischer and Daniel Hemel have written a terrific article, The Architecture of a Basic Income, about a universal basic income, or UBI. They offer concrete policy advice grounded in philosophical priors. They successfully separate questions about fundamental policy design from questions about political packaging. Their paper should become a go-to resource for the increasing swell of interest in UBI policy. ...

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August 5, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Krugman: Why Was Trumponomics A Flop? — Neither Tax Cuts Nor Tariffs Are Working

New York Times op-ed:  Why Was Trumponomics a Flop?: Neither Tax Cuts Nor Tariffs Are Working, by Paul Krugman:

Donald Trump has pursued two main economic policies. On taxes, he has been an orthodox Republican, pushing through big tax cuts for corporations and the wealthy, which his administration promised would lead to a huge surge in business investment. On trade, he has broken with his party’s free(ish) trade policies, imposing large tariffs that he promised would lead to a revival of U.S. manufacturing. ...

why has Trumponomics failed to deliver much besides trillion-dollar budget deficits? The answer is that both the tax cuts and the trade war were based on false views about how the world works.

Republican faith in the magic of tax cuts — and, correspondingly, belief that tax increases will doom the economy — is the ultimate policy zombie, a view that should have been killed by evidence decades ago but keeps shambling along, eating G.O.P. brains. ... There was never any reason to believe that cutting corporate taxes here would lead to a surge in capital spending and jobs, and sure enough, it didn’t.

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August 5, 2019 in Tax, Tax News | Permalink | Comments (3)

Lesson From The Tax Court: Appeals Is Still Part Of The IRS, Really!

Tax Court (2017)I find it useful to think of tax administration as comprising two overarching functions: (1) determining tax liabilities and (2) collecting tax liabilities.  The IRS Office of Appeals (“Appeals”) supports both functions by mediating disputes between taxpayers and either the IRS exam function or collection function.  In Aldo Fonticiella v. Commissioner, T.C. Memo. 2019-74 (June 13, 2019), Judge Gerber teaches us that even though Appeals has a different (and wider) set of powers that often allow it to settle disputes without litigation, it still functions as an integral part of the IRS, no matter how many times Congress puts “Independent” in its title.

Taxpayers unhappy with Appeals look for creative ways to avoid its decisions.  In 2011, one such taxpayer argued that all Appeals work product violated the U.S. Constitution.  His theory was that Appeals Officers were “Officers of The United States” within the meaning of the U.S. Constitution.  That meant they had to be appointed by the President with the consent of the Senate.  Because they were not, they could not wield any power over taxpayers.  That made all their work illegal and without effect.  In Tucker v. Commissioner both the Tax Court (135 T.C. 114, 2010) and the D.C. Circuit (676 F.3d 1129, 2012) rejected the argument.  Not a single judge agreed with the taxpayer.

Creativity begets creativity.  In Fonticiella, Judge Gerber considers and rejects a companion argument, that Appeals is a “de facto independent agency” whose very existence is an affront to the U.S. Constitution.  While that is a loser argument today, it may become a winner eventually as Congress keeps trying to transform Appeals into a mini-me Tax Court.  The recently enacted Taxpayer First Act, P.L. 116-25, moves in that direction, although not far enough, IMHO, to affect the rationale for Judge Gerber’s decision.  You can read more about it below the fold.

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August 5, 2019 in Bryan Camp, IRS News, New Cases, Scholarship, Tax, Tax Practice And Procedure, Tax Scholarship | Permalink | Comments (0)

Senate Confirms Courtney Dunbar Jones And Emin Toro As Tax Court Judges

Bloomberg Tax, Senate Confirms Two Tax Court Nominees:

The Senate confirmed two U.S. Tax Court nominees in a voice vote before leaving for August recess. Courtney Dunbar Jones and Emin Toro will now each serve a 15-year term.

White House Nomination Of Courtney Dunbar Jones:
Courtney 2Courtney Dunbar Jones serves as a senior attorney in the Tax-Exempt and Government Entities division in the Office of Chief Counsel of the Internal Revenue Service. Prior to joining the Chief Counsel’s office six years ago, Mrs. Jones practiced for three years in the exempt organizations and intellectual property practice groups of the Washington, D.C.-based firm Caplin & Drysdale. Before relocating to the Washington area, she practiced for four years at Bird, Loechl, Brittain & McCants, a boutique law firm in Atlanta. Since 2015, Mrs. Jones has served on the Board of Trustees of Hampton University, where she earned her B.S., magna cum laude and was the recipient of the President’s Award for Exceptional Achievement. Mrs. Jones then earned her J.D. from Harvard Law School, where she served for two years as the editor in chief of the Harvard BlackLetter Law Journal, (which has since been renamed the Harvard Journal on Racial & Ethnic Justice). During law school, Mrs. Jones was recognized for a variety of achievements; she was named a scholar in the Earl Warren Legal Training Program sponsored by the NAACP Legal Defense and Education Fund, and received the National Bar Institute African American Law Student Fellowship.

White House Nomination Of Emin Toro:

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August 5, 2019 in Tax, Tax News | Permalink | Comments (1)

TaxProf Blog Weekend Roundup

Sunday, August 4, 2019

Hemel: Why California’s Plan To Get Trump’s Tax Returns Won’t Work

Washington Post op-ed:  Why California’s Plan to Get Trump’s Tax Returns Won’t Work, by Daniel Hemel (Chicago):

California’s governor signed a law this week requiringpresidential candidates to disclose their federal income tax returns as a condition for getting on the state’s primary ballot. It’s a bold and creative move aimed at forcing President Trump to release his tax filings — one that a handful of other blue states are considering.

It’s also highly unlikely to work as intended.

The obstacles to the law’s effectiveness are both legal and practical. Courts may well strike down the law on constitutional grounds. But even if the law passes constitutional muster (a big “if”), it lacks the teeth to make Trump comply.

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August 4, 2019 in Tax, Tax News | Permalink | Comments (0)

The Top Five New Tax Papers

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

  1. [517 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  2. [249 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  3. [221 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  4. [150 Downloads]  Fixing the Five Flaws of the Tax Cuts and Jobs Act, by Kimberly Clausing (Reed College)
  5. [122 Downloads]  Back to Basics: Rethinking Normative Principles in International Tax, by Shay Shimon Moyal (S.J.D. 2020, Michigan)

August 4, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Saturday, August 3, 2019

This Week's Ten Most Popular TaxProf Blog Posts

Inversion Reversion: Deals to Move Corporate HQs Outside U.S. Lose Favor Due to Smaller Tax Benefits

Wall Street Journal, Inversion Reversion: Deals to Move Corporate HQs Outside U.S. Lose Favor Due to Smaller Tax Benefits:

Inversions are starting to revert.

When Mylan moved its corporate address to the Netherlands in 2015, the pharmaceutical company joined a wave of corporate inversion deals aided by tax advantages of a non-U.S. address. Now, Mylan’s address is coming back to the U.S. through a merger deal this week with part of Pfizer, a sign that the 2017 tax law is rendering these moves less attractive than they once were.

The deal comes a month after Allergan PLC—another inverted pharmaceutical company, based in Dublin—announced its return to a U.S. parent through a sale to AbbVie.

On balance, say tax lawyers and analysts, foreign addresses still confer a slight tax advantage.

But after the U.S. corporate tax cuts in the 2017 law, the edge is small enough that it might not be worth reputational and political costs.

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August 3, 2019 in Tax, Tax News | Permalink | Comments (0)

Friday, August 2, 2019

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Kysar's Unraveling The Tax Treaty

This week, David Elkins (Netanya) reviews Rebecca M. Kysar (Fordham), Unraveling the Tax Treaty, 103 Minn. L. Rev. __ (2019).

Elkins (2018)Tax treaties are a ubiquitous feature in the landscape of international taxation, with several thousand bilateral instruments operating to regulate the taxing power of their signatories. However, in recent years, scholars have begun to challenge the century-old principles underlying the tax treaty. Some of these challenges concern the capacity of an institution formed in the aftermath of the First World War to handle our digital and much more globalized economy. Other challenges concern the role of the tax treaty in protecting the interests of wealthier countries.

The bulk of Professor Rebecca Kysar’s essay is dedicated to a critical examination of the tax treaty, as currently constituted. Tax treaties have been justified as tools for preventing double taxation, combatting tax evasion, inhibiting double non-taxation, encouraging foreign direct investment, respecting comity, providing certainty and predictability, institutionalizing non-discrimination, and binding governments to follow good tax policy even when confronted with the demands of political expediency. Professor Kysar addresses each of these issues in turn. 

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August 2, 2019 in David Elkins, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (0)

Tax Policy In The Trump Administration

Trump's Taxes And Tax Returns

Tax Panels Today At SEALS

Tax panels today at the 2019 SEALS Annual Conference in Boca Raton, Florida:

SEALs Logo (2013)Tax Law Workshop: Tax Law and Practice — A Critical Review
This panel considers both the realities of tax practice and tax practitioners in the 21st Century, as well as necessary updates to the tax law in a variety of areas. In particular, panelists in this group consider the future of the uncovering and punishing of tax evasion, standards of professionalism for tax practitioners, the role of blockchain technology in tax evasion (particularly in the international context), philanthropy and the tax law, and the role of the states in creating and enforcing tax laws.

  • Jennifer Bird-Pollan (Kentucky) (moderator)
  • William Byrnes (Texas A&M)
  • Alyssa DiRusso (Samford)
  • David Hasen (Florida)
  • Young Ran (Christine) Kim (Utah)
  • Stephanie McMahon (Cincinnati)
  • Andrew Swain (Indiana)
  • Richard Winchester (Seton Hall)

Tax Law Workshop: Tax Policy Reforms in the 21st Century

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August 2, 2019 in Conferences, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

Boeing's $5 Billion Charge For Grounding 737 Max Planes Will Generate Max NOL Due To 2017 Tax Law Change

Bloomberg Tax, Boeing to Reap Tax Benefits for Years With $5 Billion Max Charge:

Boeing 737 maxBoeing took an almost $5 billion hit to its bottom line in the second quarter over the grounding and delayed deliveries of its 737 Max planes—but tax benefits created by the charge will help the company for years to come. Thanks to a revision to the tax code made by the 2017 tax overhaul, Boeing can carry losses from the 737 Max debacle forward to offset future taxes indefinitely, tax professionals said. Before the law’s changes to tax code Section 172, it would have faced a 20-year deadline.

While it reported the charge on its financial statements, the company won’t recognize the projected expenses for tax purposes until they have actually been incurred, according to tax professionals. ...

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August 2, 2019 in Tax, Tax News | Permalink | Comments (2)

Thursday, August 1, 2019

Trump’s Lasting Tax Policy Legacy Is Lowered Tax Morale

Andrew Leahey (Tax LL.M. 2019, NYU), Trump Tax Games: Lowered Tax Morale as Trump’s Lasting Tax Policy Legacy:

The Trump administration’s most permanent change to tax policy will not come in the form of executive action or signature legislation, but will stem from the way in which Trump himself has undermined tax compliance and lauded tax evasion — both in words and by example. These effects are not easily mitigated, as unlike tax rates there is no political or legislative mechanism through which social norms can be effectively changed.

August 1, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (3)

More On The 50 Most-Cited Tax Articles of All Time

Following up on my previous post on Jonathan H. Choi (NYU), The 50 Most-Cited Tax Articles of All Time, 36 Yale J. on Reg.: Notice & Comment (May 11, 2019):

47 authors (40 men, 7 women) wrote the 50 most-cited tax articles, 8 (7 men, 1 woman) more than once:

Author Frequency
Boris Bittker  4
David Weisbach  4
Joseph Bankman  3
Stanley Surrey  3
Reuven Avi-Yonah  2
Michael Graetz  2
Marjorie Kornhauser  2
Edward Zelinsky  2
Bruce Ackerman  1
Anne Alstott  1
William Andrews  1
Lily Batchelder  1
Walter Blum  1
Paul Caron  1
Marvin Chirelstein  1
Dan Coenen  1
Richard Doernberg  1
Peter Enrich  1
Victor Fleischer  1
Pamela Gann  1
Mark Gergen  1
Fred Goldberg 1
Thomas Griffith 1
Erwin Griswold  1
Daniel Halperin  1
David Hariton 1
Walter Hellerstein  1
Kristin Hickman  1
Harry Kalven 1
Louis Kaplow  1
Mark Kelman   1
Leandra Lederman  1
Fred McChesney  1
Beverly Moran  1
R.A. Musgrave  1
Jacob Nussim  1
Michael O’Hear  1
Peter Orszag 1
Randolph Paul 1
William Plumb 1
Eric Posner  1
David Schizer  1
Steven Shavell  1
Dan Shaviro  1
David Slawson  1
Joseph Sneed  1
William Whitford  1

The authors are from 22 law schools, 12 law schools are represented more than once:

School Frequency
Harvard 9
Chicago 7
Yale 6
Stanford 5
Columbia 4
Cardozo 2
Emory 2
Georgia 2
Michigan 2
NYU 2
Tulane 2
USC 2
Duke 1
Indiana 1
Marquette 1
Minnesota 1
Northeastern 1
Pepperdine 1
UC-Berkeley 1
UC-Irvine 1
Vanderbilt 1
Wisconsin 1

The 50 most-cited tax articles were published in 21 law reviews (12 law reviews published 2 or more of the articles):

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August 1, 2019 in Legal Education, Pepperdine Tax, Tax, Tax Prof Rankings, Tax Rankings, Tax Scholarship | Permalink | Comments (1)

Federal Judge Overturns IRS Rule To Shield Political Donor Identities

Bloomberg, Judge Overturns IRS Rule to Shield Political Donor Identities

A federal judge in Montana overturned an Internal Revenue Service rule that would allow many political non-profit groups to keep their donor lists private [Bullock v. Rettig, No. CV-18-103-GF-BMM (D. MT July 30, 2019).

The ruling upends a change the IRS made last year that permitted so-called Section 501(c)4 groups, known as “social-welfare” organizations, to keep their donor lists private. A federal judge said the IRS didn’t follow proper procedure in writing the rule and needs to allow the public to weigh in on the change before altering the tax code.

“Then, and only then, may the IRS act on a fully informed basis when making potentially significant changes to federal tax law,” U.S. federal Judge Brian Morris said in the opinion published Tuesday evening. ...

The ruling is a blow to Treasury Secretary Steven Mnuchin who touted the rule, saying it protected donor privacy because the IRS didn’t need the information to enforce tax laws. Democrats had criticized the agency’s move, saying it opened up the possibility for foreign interests to influence elections.

Update:  Bloomberg Tax, IRS Could Face More Court Battles After Nonprofit Donor Ruling:

The IRS may be vulnerable to more court challenges after a federal judge struck down agency guidance that rolled back nonprofit donor disclosure requirements, according to tax professionals.

The ruling upends a position that the Internal Revenue Service and Treasury Department have taken for a long time that guidance falling short of a regulation doesn’t have to go through a full notice-and-comment period, said Kristin Hickman. ...

“The fact that the judge declared a revenue procedure to be a legislative rule is a big deal,” said Hickman, a professor at the University of Minnesota Law School who specializes in tax administration and administrative law.

The decision could subject other revenue procedures—or revenue rulings—to challenges from taxpayers if Morris’s ruling stands, said Lloyd Hitoshi Mayer, a professor at University of Notre Dame Law School. This, however, may not work in every case. The fact that the donor disclosure change amended a nearly 50-year-old rule seemed to play a large role in the judge’s decision, Mayer said.

For background of the case, see:

August 1, 2019 in IRS News, New Cases, Tax, Tax News | Permalink | Comments (3)

Today's Tax Panel At SEALS

Tax panel today at the 2019 SEALS Annual Conference in Boca Raton, Florida:

SEALs Logo (2013)Tax Law at the Crossroads
The ever-changing social and political landscape makes it necessary to constantly revisit the tax law and determine whether the current status of the law matches the needs and goals of the society it serves. The Tax Cuts and Jobs Act is the most recent example of a massive overhaul in the tax system but even that significant reform effort left many issues unaddressed. The papers on this panel consider a variety of tax law concerns related to families, businesses, and international transactions. Both federal- and state-level tax matters are addressed.

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August 1, 2019 in Conferences, Tax, Tax Conferences, Tax Scholarship | Permalink | Comments (0)

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August 1, 2019 in About This Blog, Legal Education, Tax | Permalink | Comments (0)

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August 1, 2019 in About This Blog, Legal Education, Tax | Permalink | Comments (0)

Wednesday, July 31, 2019

Nina Olson Retires Today After 18 Years As National Taxpayer Advocate (Update From Nina)

Bloomberg Tax, ‘Advocate Zealously’ for Taxpayers, IRS's Olson Urges Successor:

Olson (2018)“Not a team player.” “A thorn in the government’s side.” “The voice of the taxpayer.”

Outgoing National Taxpayer Advocate Nina E. Olson has been called many things, and she bears those titles—both the good and the bad—proudly.

Olson, who retires as head of the Taxpayer Advocate Service July 31 after 18 years, is no stranger to controversy. Her role—part of an independent arm of the Internal Revenue Service where taxpayers can turn for help if they have a dispute with the agency—has naturally pitted her against senior IRS leadership occasionally.

But looking back at her time in the government, Olson wouldn’t change her approach. And Congress, which created the role to act as an independent voice for the American taxpayer, might have something to say about it if her successor feels otherwise.

“The next person may have a different style,” she told Bloomberg Tax in a sitdown interview. “But they will still need to advocate zealously.”

Olson spoke about the sometimes-contentious relationship in her last public speaking engagement as the national advocate. ...

Olson said her biggest regret as advocate is that she didn’t notice the IRS’s targeting of certain political groups sooner.

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July 31, 2019 in IRS News, Tax, Tax News | Permalink | Comments (1)

Johnson: The Estate Tax Gap

Calvin H. Johnson (Texas), The Estate Tax Gap, 163 Tax Notes 1479 (June 3, 2019):

The Internal Revenue Code provides that all property transferred by reason of death shall be included in the gross estate whether the property is real or personal, tangible or intangible and wherever located. The IRS Statistics of Income, however, indicates that estate and gift tax reaches only 25% of the IRS would expect to collect if wealth transferred at death were included in full in the gross estate. The paper uses calculations based on the Saez and Zucman statistics of wealth, and defends those statistics as the best for estate tax purposes. The rest or 75% of value is lost to undervaluation of the property transferred. The articles suggests some simple steps to combat undervaluation, including ignoring temporary restrictions the decedent has added to the property to suppress its supposed value, and delaying the valuation date until the decedent’s retained interest have expired. But the talent of the estate planning bar is such that we should not expect full and fair valuation of property transferred by reason of death.

See also Paul L. Caron (Dean, Pepperdine) & James R. Repetti (Boston College), The Estate Tax Non-Gap: Why Repeal a 'Voluntary' Tax?, 20 Stan. L. & Pol'y Rev. 153 (2009)

July 31, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (1)

The UNC TCJA Effects Tracker

Jeff Hoopes (Research Director, UNC Tax Center), The TCJA Effects Tracker:

UNC Tax CenterWhat Do We Know About the Effects of the Tax Cuts and Jobs Act?
On December 22, 2017, the U.S. tax code was dramatically changed when what is commonly referred to as the Tax Cuts and Jobs Act (TCJA) was signed into law. As tax scholars, we have a keen interest in knowing how the TCJA will change the world. On this page, we are posting empirical academic studies that focus on specific provisions of this monumental tax reform.

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July 31, 2019 in Tax, Tax Scholarship | Permalink | Comments (0)

Kleinbard: 'Indexing Capital Gains For Inflation By Administrative Fiat Is An Insult To The American Tax System'

Los Angeles Times, Incredibly, GOP Senators Are Demanding Billions More in Tax Cuts For the Rich:

The adage “Give ’em an inch and they’ll take a mile” doesn’t apply anymore in our modern age. Today, it’s better to say, “Give the rich trillions of dollars in tax cuts, and they’ll demand hundreds of billions more.”

That’s the message conveyed by a letter that went out Monday from 21 Republican senators, led by Ted Cruz of Texas, to Treasury Secretary Steven T. Mnuchin. They’re demanding that Mnuchin deliver a new tax cut via executive fiat.

The GOP complains that the capital gains tax isn’t indexed to inflation. As a result, the argument goes, taxpayers including “everyday Americans” are charged taxes on gains that are due purely to inflation, not to the real appreciation of their stocks or bonds. ...

[C]hanging the capital gains tax structure by fiat would circumvent the Democratic-controlled House Ways and Means Committee, where all fiscal legislation must originate. “Indexing capital gains for inflation by administrative fiat is plainly an unlawful overreach of regulatory authority and will be struck down” in court, says tax expert Edward Kleinbard of USC, a former chief of staff to the Congressional Joint Committee on Taxation. ...

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July 31, 2019 in Tax, Tax News | Permalink | Comments (1)

Tuesday, July 30, 2019

Chicago-Kent Seeks To Hire A Tax Prof

Chicago-KentChicago-Kent College of Law expects to hire two or more entry-level or pre-tenure lateral faculty to join our vibrant and nationally recognized intellectual community. We are especially interested in candidates with a demonstrated commitment to scholarship and teaching in the following fields:

  • First-Year Subjects (including Legislation)
  • Commercial Law
  • Corporate Law
  • Labor/Employment Law
  • Tax Law

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July 30, 2019 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

Borden: Measuring Partners’ Capital Interests And Profits Interests

Bradley T. Borden (Brooklyn), Partnership-Related Relatedness: Measuring Partners’ Capital Interests and Profits Interests:

Section 707(b)(1) provides that two partnerships are related if the same persons own more than 50% of the partnership’s capital interests or profits interests. Even though numerous sections of the Internal Revenue Code rely upon that definition of partnership relatedness, the law does not provide meaningful guidance for measuring capital and profits interests. Measuring such interests in partnerships with distribution-dependent equity structures is particularly challenging because rights to profits can vary from tier-to-tier in distribution waterfalls. Focusing on measuring profits interests in partnerships, this article presents five methods for measuring such interests: (1) the max-out approach, (2) the capital-only liquidation approach, (3) the capital-plus liquidation approach, (4) the current-profits approach, and (5) the projected-profits approach. With no guidance in this area favoring any approach, observers may conclude that any of the approaches could be used to measure profits interests.

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July 30, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

#TaxFlix: 56 Tax Films

Allison Christians (McGill), 55 Documentaries and One Drama: A List of Films About Tax #TaxFlix:

A discussion about tax documentaries unfolded on twitter over the past few days, dubbed #taxflix, HT @alvinmosioma.

I threaded a list that I had been keeping for some time, and the twitter discussion resulted in some key additions so I decided to upload the contents of my spreadsheet to this public google sheet, where anyone can view or add to the list, but for those who simply want the current list (arranged by year), it is below.

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July 30, 2019 in Tax, Tax News | Permalink | Comments (0)

Do Corporate Taxes Affect Executive Compensation?

Tobias Bornemann (Vienna University), Martin Jacob (WHU - Otto Beisheim School of Management) & Mariana Sailer (Vienna University), Do Corporate Taxes Affect Executive Compensation?:

The limitation of executive compensation has been a matter of public and policy debate for at least 20 years. We examine a first-time regulatory action where the deductibility of the total value of executive compensation is limited and unavoidable. We find that, rather than reduce remuneration, companies reduce precautionary savings, thereby increasing risk. This suggests that firms pass on the burden of increased taxes to shareholders. Our results shed light on the effects of reforms similar to the U.S. Tax Cuts and Jobs Act of 2017 and contribute to prior findings that argue for proactive regulation to limit executive compensation.

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July 30, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Monday, July 29, 2019

Brooks Reviews Feminist Judgments: Rewritten Tax Opinions

Kim Brooks (Dalhousie), Will Feminist Judges Really Make a Difference? (JOTWELL) (reviewing Bridget J. Crawford (Pace) & Anthony C. Infanti (Pittsburgh), Feminist Judgments: Rewritten Tax Opinions (Cambridge University Press 2017)):

Feminist JudgmentsFeminist judgments projects originate in Canada. ... The first volume of American re-writes focused on decisions of the US Supreme Court. Surprising only to people who do not teach tax, the next volume of American re-writes takes up tax opinions. Released on December 28, 2017, as an invitation to continue holiday festivities, a volume edited by Bridget Crawford and Anthony Infanti serves up a veritable buffet of delights. Eleven rewritten American tax opinions comprise the volume. Six are rewritten Supreme Court decisions, one if a rewritten federal circuit court opinion, and four are rewritten Tax Court opinions.

The end result is spectacular. I want to draw attention to two features in this short review. These features are not tied, given this more general audience, to the tax context of the decisions. That’s worth underlining: this is a volume that is worth reading for scholars in any area of law with an interest in feminist legal theory and practice and how feminists approach legal and factual questions.

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July 29, 2019 in Book Club, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

China's 2018 Individual Income Tax Reform: A Global Perspective

Yue Dai (Oxford), China's 2018 Individual Income Tax Reform: A Global Perspective, 94 Tax Notes Int'l 849 (May 27, 2019):

This article analyzes China’s 2018 individual income tax reforms, discussing how the changes fit with China’s unique tax culture. It also compares China’s evolving tax system with the tax systems in the United States and the United Kingdom, considering how their experiences can help guide China’s reforms and, more broadly, how China’s tax system fits into the global tax environment.

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July 29, 2019 in Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

Lesson From The Tax Court: How A New Work Location Becomes A Tax Home

Tax Court (2017)The Bureau of Labor Statistics says here that almost half of U.S. families headed by a married couple were two-earner households in 2018.  Having a two-earner household has many advantages over a one-earner household, the most obvious one being more income.  Today’s lesson, however, is a cautionary one.  Two rules about tax homes may lessen the take-home earnings of the second income: the rule about married couples and the rule about temporary employment.

In Hector Baca and Magdalena Baca v. Commissioner, T.C. Memo. 2019-78 (June 26) (Judge Holmes), the couple lived in El Paso where both had worked.  In 2011 Mr. Baca got a new job in Midland, a city some 300 miles away.  But it was an on-call job, where any one job call could be his last.  At issue for tax years 2012 and 2013 was whether he could deduct his travel costs between El Paso and Midland.  Judge Holmes said no.  The fact that Ms. Baca's job remained in El Paso did not affect the location of Mr. Baca's tax home.  Married taxpayers can have two tax homes and Mr. Baca's was Midland.  Thus Mr. Baca's costs of Midland travel and lodging could not be deducted from the money he made there.  That reduced the advantage of this married couple's second income.  Details below the fold.

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July 29, 2019 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship | Permalink | Comments (2)

Today's Tax Panel At SEALS

Tax panel today at the 2019 SEALS Annual Conference in Boca Raton, Florida:

SEALs Logo (2013)New Tax Scholars Workshop
This workshop gives New Scholars the opportunity to present a work-in-progress in a welcoming and supportive environment and to receive feedback on their presentation from more senior scholars in their fields. New Scholars are also assigned a mentor. The program is open to junior faculty at member schools. New Scholars are nominated to participate in the New Scholars Workshop by the deans of their respective law schools.

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July 29, 2019 in Conferences, Scholarship, Tax, Tax Scholarship | Permalink | Comments (0)

TaxProf Blog Weekend Roundup

Sunday, July 28, 2019

The Top Five New Tax Papers

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

  1. [497 Downloads]  The President's Tax Returns, by Andy Grewal (Iowa)
  2. [237 Downloads]  A Tax Professor's Guide to Formative Assessment, by Heather Field (UC-Hastings)
  3. [204 Downloads]  Where Is the Opportunity in Opportunity Zones? Early Indicators of the Opportunity Zone Program’s Impact on Commercial Property Prices, by Alan Sage (MIT), Mike Langen (Maastricht University) & Alex Van de Minne (MIT)
  4. [143 Downloads]  Fixing the Five Flaws of the Tax Cuts and Jobs Act, by Kimberly Clausing (Reed College)
  5. [117 Downloads]  Back to Basics: Rethinking Normative Principles in International Tax, by Shay Shimon Moyal (S.J.D. 2020, Michigan)

July 28, 2019 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink | Comments (0)

Saturday, July 27, 2019

This Week's Ten Most Popular TaxProf Blog Posts

IRS Cracks Down On 10,000 Cryptocurrency Owners

Wall Street Journal, IRS Sending Warning Letters to More Than 10,000 Cryptocurrency Holders:

Bitcoin IRSThe Internal Revenue Service has begun sending letters to more than 10,000 cryptocurrency holders, warning they may have broken federal tax laws.

The agency wasn’t specific about the possible violations it was reviewing, but those who hold digital currencies could be subject to a variety of taxes, especially on capital gains.

“Taxpayers should take these letters very seriously. The IRS is expanding efforts involving virtual currency,” IRS Commissioner Chuck Rettig said. ...

The IRS letters come as bitcoin, the world’s most popular cryptocurrency, has ridden a new wave of optimism in recent months. In mid-July, bitcoin topped $12,000, more than three times its value at the end of 2018. Investors, speculators and Facebook have extolled the potential of digital currencies.

At the same time, use by drug dealers and other nefarious actors has marred its reputation. The IRS has expressed worries about the ability of digital currencies to promote tax evasion. ...

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July 27, 2019 in IRS News, Tax, Tax News | Permalink | Comments (0)

Friday, July 26, 2019

Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Crawford's Magical Thinking And Trusts

This week, Hayes Holderness (Richmond) reviews Bridget J. Crawford (Pace), Magical Thinking and Trusts, 50 Seton Hall L. Rev. ___ (2019).

Holderness (2017)

Wealth inequality is a major concern in today’s United States. As wealth concentrates among the super-wealthy, lawmakers, academics, and commentators have proposed ways to diffuse that wealth, often through tax reform. Wealth remains concentrated in part through the use of legal rules and entities, perhaps in ways that lead to unintended results. Here there be trusts. Trusts—particularly family trusts—have long been a major tool of wealth conservation and potential tax avoidance. So when the Supreme Court heard this year’s Kaestner case questioning North Carolina’s authority to tax the income of a family trust, many hoped that the Justices would help dismantle the tax avoidance tool by blessing the state’s taxing authority.

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July 26, 2019 in Hayes Holderness, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink | Comments (2)

Tax Policy In The Trump Administration