Paul L. Caron

Thursday, October 7, 2021

Northwestern Offers 4-6 Graduate Tax Program Tuition Scholarships ($69k) To Serve As Student Editors Of The Tax Lawyer

From Philip Postlewaite (Harry R. Horrow Professor in International Law and Director, Northwestern's Graduate Tax Program):

Northwestern Tax Lawyer (2021)As you know, the Tax Program at Northwestern is the educational affiliate of the ABA’s Tax Section. Each year, four to six LLM-Tax students are selected to serve as editors of The Tax Lawyer, the Tax Section’s flagship journal. In order to encourage highly qualified applicants to apply to, and matriculate at, Northwestern, each student editor receives a Dean’s Scholarship, which is equal to the cost of tuition [$69,350].

We are seeking your assistance in identifying top candidates for these positions. Please inform interested students of this excellent opportunity.

The application deadline for students who are interested in being considered for a position on the editorial board is January 15, 2022.

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October 7, 2021 in ABA Tax Section, Legal Education, Tax | Permalink

Charlene Luke And Grayson McCouch Awarded Chair, Professorship At Florida

Charlene Luke (Google Scholar) has been named Hubert C. Hurst Eminent Scholar Chair in Law. Her recent publications include:

Grayson McCouch has been named Clarence TeSelle Professor of Law. His recent publications include:

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October 7, 2021 in Legal Education, Tax | Permalink

Northwestern Seeks To Hire An Entry Level Or Lateral Tax Prof

Northwestern Pritzker School of Law invites applications for tenured or tenure-track faculty positions with an expected start date of September 1, 2022:

Northwestern (2018)This is part of a multi-year strategic hiring plan, and we will consider entry-level, junior, and senior lateral candidates.

Northwestern seeks applicants with distinguished academic credentials and a record of or potential for high scholarly achievement and excellence in teaching. Specialties of particular interest include: tax, anti-discrimination law, international law (joint search with the Buffett Institute for Global Affairs), health law (joint search with the Feinberg School of Medicine), and business law. Northwestern welcomes applications from candidates who would contribute to the diversity of our faculty and community. Positions are full-time appointments with tenure or on a tenure-track.

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October 7, 2021 in Legal Education, Tax, Tax Prof Jobs | Permalink

Democrats’ Tax Plan Upends Estate Planning Using Trusts With Life Insurance

Lynnley Browning (Financial Planning), Democrats’ Tax Plan Upends Estate Planning Using Trusts With Life Insurance:

The tax plan taking shape in Congress would strangle a strategy widely used by the wealthy to shield their estates from taxes and pass on major wealth to heirs. Specifically, it would erase the long-standing benefit of keeping life insurance in certain trusts, by making its value subject to the 40% estate tax when the policy owner dies. That’s a huge change: Currently, the trusts and their assets aren’t subject to the levy.

With that prospect, why pour money into a policy now? Because, the thinking goes, pre-paying a lifetime’s worth of annual premiums by Jan. 1, before the new curb would go into effect if approved, could preserve the trust’s lucrative tax benefits. ...

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October 7, 2021 in Tax, Tax News | Permalink

Wednesday, October 6, 2021

The Tax Gap, Shades Of Gray, And The Manchin Memo

Daniel J. Hemel (Chicago; Google Scholar), Janet Holtzblatt (Tax Policy Center) & Steve Rosenthal (Tax Policy Center), The Tax Gap's Many Shades of Gray:

The “tax gap”—the difference between the amount of “true tax” and the amount of tax actually paid—has garnered widespread attention in recent months. Much of the commentary on the subject equates the tax gap with “tax evasion,” a term broadly understood to connote intentional (and potentially criminal) underreporting. This paper cautions against conflating the tax gap with tax evasion. The tax gap includes substantial gray areas where the law is ambiguous and the IRS’s determination of “true tax” is debatable. On top of that, the IRS’s methodology for measuring the tax gap includes upward adjustments that are recommended by front-line examiners but reversed on administrative appeal or judicial review. Moreover, a substantial portion of the estimated tax gap is derived from a statistical technique called “detection controlled estimation” that potentially magnifies the impact of later-reversed recommendations on the ultimate tax gap measure. Weighing in the opposite direction, the IRS’s approach to measuring the tax gap excludes some amounts that clearly constitute tax evasion (most significantly, underreporting of tax on illegal-source income).

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October 6, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Winchester: A GILTI Fix For An Employment Tax Glitch

Richard Winchester (Seton Hall; Google Scholar), A GILTI Fix for an Employment Tax Glitch, 48 Pepp. L. Rev. 915 (2021):

When a self-employed individual operates through a business entity, they can frequently dictate the extent to which the firm's profits are included in their employment tax base. That permits such individuals to control how much employment tax they pay, if any. They enjoy this power because the rules permit them to dictate whether the earnings they derive through the firm count as labor income, which is subject to employment tax, or the returns on any capital they have invested in the business. The GILTI rules enacted as part of the 2017 Tax Act contain an assumption that amounts invested in capital generally earn a 10 percent annual rate of return. That same assumption can be used to determine whether the earnings of a self-employed individual count as labor income or returns to capital. Such a mandatory rule would eliminate the abusive practices that self-employed individuals currently utilize, permitting the entire employment tax system operate in a more equitable way.

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October 6, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Former W&L Dean Brant Hellwig To Lead NYU Graduate Tax Program

NYU Law News, Brant Hellwig LLM ’00 to Lead Graduate Tax Program:

HellwigBrant Hellwig LLM ’00 will join NYU Law on January 1, 2022 as professor of tax law and as the new faculty director of the Graduate Tax Program, Dean Trevor Morrison announced on October 1.

Hellwig arrives at NYU Law after serving as dean and professor at Washington & Lee School of Law, and two decades after he began his academic career at NYU Law as an acting assistant professor for tax law. “Brant returns to NYU Law with extensive knowledge of and passion for the Graduate Tax Program,” Morrison said in an email announcement. “Please join me in congratulating him and welcoming him back to the NYU Law community.”

An expert in the field of federal taxation, Hellwig has produced prolific scholarship on a wide range of topics, from the income tax consequences of deferred compensation arrangements to the treatment of family-owned holding companies under the federal estate tax. He recently co-authored two casebooks, one on partnership taxation in 2019 and one on business enterprise taxation in 2020, with Stephen Schwarz and Daniel J. Lathrope. In 2019, he also co-authored a casebook on estate and gift taxation with W&L Law colleague Robert Danforth. In 2015, commissioned by the United States Tax Court, he updated and expanded a seminal treatise on the court’s history and evolving jurisdiction.

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October 6, 2021 in Legal Ed News, Legal Education, Tax, Tax News, Tax Prof Moves | Permalink

Save The Date: Ed Kleinbard Memorial Conference At USC


USC Gould School of Law is pleased to announce that it will be hosting a virtual conference on November 5, 2021, in memory of our esteemed departed colleague Professor Edward Kleinbard.  

We are excited to have a prestigious lineup of speakers to discuss the wide range of Professor Kleinbard’s lifetime work, including:

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October 6, 2021 in Conferences, Legal Education, Scholarship, Tax, Tax Conferences, Tax Scholarship | Permalink

Trump Faces A Tax Reckoning In New York

The New Yorker, Trump Still Faces a Reckoning in New York:

Court documents and interviews indicate that the Manhattan District Attorney is accumulating evidence of pervasive tax fraud.

Last Monday, eighty days after their first courtroom appearance in a case known as The People of the State of New York v. The Trump Corporation, et al., the defendants’ lawyers walked down the hallway on the eleventh floor of the Manhattan Criminal Courts Building, ready to face the judge. The long, timeworn corridor was not crowded; far fewer reporters had gathered than during the initial court hearing, in July, when prosecutors unveiled fifteen felony charges, including tax fraud and grand larceny, against Donald Trump’s company and its chief financial officer, Allen Weisselberg. The packed hallway was so hot that day that someone had jammed a scrunched-up plastic water bottle under the door of the women’s bathroom, propping it open so a bit of cool air after a midday downpour could slip through a window within, past the cruddy stalls and beige-tiled floors and out into the corridor.

The diminished audience last week reflected a perception, aided by Trump’s lawyers, that the case is not all that serious, a sideshow. The alleged crimes committed by the Trump Corporation and Weisselberg relate to the conferring of privileges like luxury apartments, private schools, pricey cars, even parking spots. The word “perks” has slipped into news coverage of the case. But prosecutors have issued new subpoenas and are continuing to use the extensive powers of a New York grand jury to possibly add new charges and new defendants to the case. It’s not clear who those defendants are or what the charges may be. During last Monday’s court appearance, one of Weisselberg’s attorneys, Bryan Skarlatos, said, “We have strong reason to believe there could be other indictments coming.” He expressed concern that Weisselberg could become “collateral damage as part of a bigger fight between the Trump Organization and the District Attorney’s office.”

Even if no additional charges are filed, the former President’s company faces a potential reckoning. The charging documents and interviews with former prosecutors and white-collar defense lawyers indicate that the District Attorney is accumulating evidence of pervasive tax fraud. The case goes to the heart of what made—and still makes—Trump Trump. ...

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October 6, 2021 in Tax, Tax News | Permalink

2d Circuit Rejects States' Challenge To $10,000 Cap On State & Local Tax Deduction

New York v. Yellen, No. 19-3962 (2d Cir. Oct. 5, 2021):

New York, Connecticut, Maryland, and New Jersey (the “Plaintiff States”) appeal from a judgment of the United States District Court for the Southern District of New York (Oetken, J.) granting the defendants’ motion to dismiss for  failure to state a claim and denying the States’ cross-motion for summary  judgment. The States allege that the $10,000 cap on the federal income tax  deduction for money paid in state and local taxes, enacted as part of the 2017 Tax  Cuts and Jobs Act, violates the United States Constitution. They argue that the state and local tax deduction is constitutionally mandated, or alternatively that the cap violates the Tenth Amendment because it coerces them to abandon their preferred fiscal policies. The District Court held that the States had standing and that their claims were not barred by the Anti-Injunction Act (“AIA”), 26 U.S.C. 10 § 7421(a), but it concluded that the claims lacked merit. We agree with the District Court, and we therefore AFFIRM the judgment. ...

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October 6, 2021 in New Cases, Tax | Permalink

Tuesday, October 5, 2021

Layser Presents A Spatial Analysis Of Place-Based Tax Incentives Today At Georgetown

Michelle D. Layser (Illinois; Google Scholar) presents Subsidizing Gentrification: A Spatial Analysis of Place-Based Tax Incentives, 11 UC Irvine L. Rev. __ (2021), virtually at Georgetown today as part of its Tax Law and Public Finance Workshop hosted by Brian Galle:

Michelle-layserPlace-based tax incentives, such as the New Markets Tax Credit (NMTC) and Opportunity Zones incentives, are often used to promote investment in low-income neighborhoods. However, not all low-income neighborhoods have an equal need for investment subsidies. Subsidies for investment in already gentrifying neighborhoods, for example, may reflect inefficient inframarginal investment, and they may lead to inequitable outcomes. Critics fear that when gentrifying neighborhoods are eligible for tax incentives, they will draw investment away from the neighborhoods that need it most. However, few studies have provided empirical analysis to assess whether these concerns have merit. Through a novel geospatial analysis of the location patterns of tax-subsidized projects, this Article provides new evidence that critics’ concerns are justified.

This Article analyzes 15 years of NMTC data to explore the location patterns of tax-subsidized projects in 20 U.S. cities.

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October 5, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Hayashi Presents Dynamic Property Taxes And Racial Gentrification Today At UC-Hastings

Andrew T. Hayashi (Virginia; Google Scholar) presents Dynamic Property Taxes And Racial Gentrification, 96 Notre Dame L. Rev. 1517 (2021), virtually at UC-Hastings today as part of its 2021 Tax Speaker Series hosted by Heather Field and Manoj Viswanathan:

Hayashi_andrew_Many jurisdictions determine real property taxes based on a combination of current market values and the recent history of market values, introducing a dynamic aspect to property taxes. By design, homes in rapidly appreciating neighborhoods enjoy lower tax rates than homes in other areas. Since growth in home prices is correlated with — and may be caused by — changing neighborhood demographics, dynamic property taxes will generally have racially disparate impacts. These impacts may explain why minority-owned homes tend to be taxed at higher rates. Moreover, the dynamic features of local property taxes may subsidize gentrification and racially discriminatory preferences.

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October 5, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

Columbia Seeks To Hire A Tax Clinician

Columbia (2017)Columbia Law School invites applicants for clinical faculty positions, across areas of practice and teaching experience. We continue to be interested in candidates who will help us build the next generation of clinics at CLS and welcome candidates to fill existing gaps in our curriculum and candidates who bring new ideas for clinical teaching. One area of interest is environmental law and environmental justice. Another area of interest is business law, which may include transactional, real estate, or tax law. Another area of interest is clinics that represent individuals in litigation matters. ...

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October 5, 2021 in Legal Education, Tax, Tax Prof Jobs | Permalink

Supporting Small Businesses In Place

Edward De Barbieri (Albany; Google Scholar), Supporting Small Businesses in Place, 48 Fordham Urb. L.J. __ (2021): 

How do lawmakers support small businesses most deserving of assistance in places most in need of governmental support? As a means for approaching this question, this Essay examines two recent laws — the Paycheck Protection Program and the Opportunity Zone tax incentive. The Paycheck Protection Program was the cornerstone of the CARES Act, designed to keep employees on payroll during the worst parts of the COVID-19 pandemic. The Opportunity Zone incentive was implemented to provide economic development stimulus to neighborhoods identified as needing capital investment following the Great Recession.

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October 5, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Blue J Predicted With 95% Confidence That 7th Circuit Would Affirm Tax Court In Innocent Spouse Cases

Benjamin Alarie & Stefanie Di Giandomenico (Blue J Legal), Blue J Predicted With 95% Confidence That Seventh Circuit Would Affirm Tax Court In Innocent Spouse Cases, 172 Tax Notes Fed. 2149 (Sept. 27, 2021):

Tax Notes Federal (2020)Clients often ask tax practitioners what their prospects of success are in litigation. Although the practitioner may have an opinion on the issue, the chances of success are often difficult if not impossible to quantify accurately and reliably. The question becomes even more complicated at the appellate stage because standards of review come into play, and the evidence to draw on is generally limited to what has already been considered by the lower court. New technology is bringing about change. Practitioners can now leverage machine learning systems trained on data from all other relevant decisions to assess the strength of their appeals on the merits. Consequently, tax practitioners and clients can together make data-driven decisions about whether to appeal and, if they do so, to formulate an optimal strategy.

In this article, we examine Rogers [v. Commissioner, No. 20-2789 (7th Cir. Aug. 17, 2021)], a case about innocent spouse relief that was recently decided by the Seventh Circuit. We use this case to illustrate how Blue J’s machine learning technology could have been used by the appellant’s counsel to assess the likelihood of success on appeal and the key factors required to succeed.

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October 5, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Monday, October 4, 2021

Virginia Tax Review Publishes New Issue

Virginia Tax Review (2016)The Virginia Tax Review has published Vol. 40, No. 1 (Fall 2020):

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October 4, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Fleming Presents The Decline Of Deferral In U.S. International Tax Planning Today At Vienna

Cliff Fleming (BYU; Google Scholar) presents The Decline of Deferral in U.S. International Tax Planning virtually at Vienna University of Economics and Business today:

JCliftonFlemingPrior to the 2017 TCJA, international tax planning by U.S. multinationals concentrated heavily on deferring U.S. residual tax on income earned in low-tax foreign countries and on enhancing the deferral benefit through cross-crediting and aggressive transfer pricing. Post TCJA, deferral planning has been rendered largely vestigial by the Section 245A dividends received deduction, the Section 965 transition tax, and the GILTI regime. Now international tax planning by U.S. multinationals focuses on maximizing the benefit of the low GILTI rate, cross-crediting within the GILTI foreign tax credit basket, minimizing Subpart F income, and shifting income from high-taxed foreign subsidiaries to low-taxed foreign subsidiaries. Aggressive transfer pricing remains an important tool.

October 4, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

The Pandora Papers: Tax Havens Of The Rich And Famous

Washington Post, The Pandora Papers | A Global Investigation | Billions Hidden Beyond Reach:

A massive trove of private financial records shared with The Washington Post exposes vast reaches of the secretive offshore system used to hide billions of dollars from tax authorities, creditors, criminal investigators and — in 14 cases involving current country leaders — citizens around the world.

International Consortium of Investigative Journalists, Pandora Papers

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October 4, 2021 in Tax, Tax News | Permalink

TaxProf Blog Weekend Roundup

Sunday, October 3, 2021

The Christian Case For Biden's Plan To Raise Taxes On America's Rich

NBC News op-ed:  The Christian Case For Biden's Plan to Raise Taxes on America's Rich, Guthrie Graves-Fitzsimmons (Fellow, Faith and Progressive Policy Initiative, Center for American Progress):

Build Back BetterJesus taught that “it is easier for a camel to go through the eye of a needle than for someone who is rich to enter the kingdom of God.” His words came to mind as I watched Jeff Bezos board his private spaceship in July. It seems easier today for a billionaire to launch himself into space than for Congress to increase taxes on rich people.

Thankfully, Congress is now considering how to raise taxes on wealthy people and corporations to fund historic investments in President Joe Biden’s Build Back Better agenda. This isn’t just good policy or good politics, it’s also good Christian ethics.

Many Christians in the United States — and Americans writ large — favor raising taxes on rich people and corporations, according to recent polls. Sixty percent of self-identifying Christians believe upper-income people pay too little in taxes, according to an April Morning Consult/Politico poll, while 62 percent of Christians believe corporations pay too little in taxes. And 77 percent of Christians in the same poll agreed that the wealthiest Americans should pay higher taxes, while 71 percent said the same about corporations. ...

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October 3, 2021 in Tax, Tax News | 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) [538 Downloads]  Federal Tax Procedure (2021 Practitioner Ed.), by John Townsend (Houston)
  2. [382 Downloads]  Mega-IRAs, Mega-401(k)s, and Other Mega-Retirement Accounts: Statement for the Record, by Daniel Hemel (Chicago; Google Scholar) & Steven Rosenthal (Tax Policy Center)
  3. [372 Downloads]  Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument, by Yariv Brauner (Florida; Google Scholar)
  4. [300 Downloads]  State Aid Prohibition — The New GAAR in Town, by Joachim Englisch (Muenster)
  5. [231 Downloads]  Has Cross-Border Arbitrage Met Its Match?, by Ruth Mason (Virginia; Google Scholar) & Pascal Saint-Amans (OECD) (reviewed by Young Ran (Christine) Kim (Utah; Google Scholar) here)

October 3, 2021 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads | Permalink

Saturday, October 2, 2021

This Week's Ten Most Popular TaxProf Blog Posts

A Response To Avi-Yonah's A New Corporate Tax

Kellen Yent (LL.M. (Tax) 2021, Florida; Senior Tax Associate, PwC (Washington, D.C.)), A Response to "A New Corporate Tax":

This is a response to Professor Avi-Yonah's paper on a "New Corporate Tax" (2021). This paper's aim is to discuss the justifications and aims of a corporate tax and corporate tax policy. Specifically, this paper seeks to understand Avi-Yonah's proposal of a graduated system for the corporate tax, which is highly relevant given the new Build Back Better tax proposals from September 2021. A graduated system, may at first seem to fix many of the problems a current, stagnant rate corporate tax system has. However, after discussing the aims and justifications of a corporate tax, this seems to miss the mark. The paper seeks to ask the question: if the answer is to really tax the rich, why not do it in a more direct and sensible way, given that the actual incidence of such a tax does not fall on "corporations"?

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October 2, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Friday, October 1, 2021

Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Building Better Conservation Easements

This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by K. King Burnett, John D. Leshy (UC-Hastings), and Nancy A. McLaughlin (Utah), Building Better Conservation Easements for America the Beautiful, 45 Harv. Envtl. L. Rev. Online ___ (2021).

Roberts (2020)In May, the Biden Administration released a report developed by the Departments of Commerce, Interior, and Agriculture, and the Council on Environmental Quality, “Conserving and Restoring America the Beautiful,” which announced a new initiative to conserve 30 percent of the nation’s land and waters by 2030. Professors Arthur Middleton (UC Berkeley) and Justin Brashares (UC Berkeley), note in their New York Times op/ed, that additional lands twice the size of Texas will need to be conserved to achieve this goal. Given that more than half of U.S. forests and two-thirds of the species on the Endangered Species List have their primary habitat on private lands, they argue that conservation easements provide the key pathway to conservation at this scale. 

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October 1, 2021 in Scholarship, Tax, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink

Tax Policy In The Biden Administration

Next Week's Virtual Tax Workshops

Tuesday, October 5: Michelle D. Layser (Illinois; Google Scholar) presents Subsidizing Gentrification: A Spatial Analysis of Place-Based Tax Incentives, 11 UC Irvine L. Rev. __ (2021), virtually as part of the Georgetown Tax Law and Public Finance Workshop. If you would like to attend, please contact Brian Galle.

Tuesday, October 5: Andrew T. Hayashi (Virginia; Google Scholar) presents Dynamic Property Taxes And Racial Gentrification, 96 Notre Dame L. Rev. 1517 (2021), virtually as part of the UC-Hastings Center on Tax Law 2021 Tax Speaker Series. If you would like to attend, please email

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October 1, 2021 in Colloquia, Legal Education, Scholarship, Tax, Tax Workshops | Permalink

Wilking Presents Does It Matter Who Remits? Evidence From U.S. States’ Voluntary Collection Agreements Today At Florida

Eleanor Wilking (Cornell) presents Does It Matter Who Remits? Evidence from U.S. States’ Voluntary Collection Agreements (with Yeliz Kaçamak (Boglaziçi University; Google Scholar) & Tejaswi Velayudhan (UC-Irvine; Google Scholar)) virtually at Florida today as part of its Tax Policy Colloquium hosted by David Hasen.

Wilking (2021)In South Dakota v. Wayfair (2018), the Supreme Court empowered states to require remote sellers to remit sales taxes, thereby eliminating a persistent difference in the tax treatment of online and brick and mortar commerce. Despite the attention this decision received, we know little about how shifting the responsibility to remit will affect consumption or the tax system. To remedy this, we use states’ staggered adoption of Voluntary Collection Agreements (VCAs), which committed large online retailers to remit sales taxes prior to Wayfair. We find that while retailer remittance stemmed sales tax base erosion, the effective tax increase arising from greater compliance was almost fully passed through to consumers via higher tax-inclusive prices. Among consumers, we find that wealthier households bore more of the tax burden after the policy, suggesting that closing this evasion channel was distributionally neutral, or even modestly progressive.

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October 1, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

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October 1, 2021 in About This Blog, Legal Education, Tax | Permalink

Bird-Pollan Presents Taxing The Ivory Tower Today At Boston College

Jennifer Bird-Pollan (Kentucky; Google Scholar) presents Taxing the Ivory Tower: Evaluating the Excise Tax on University Endowments virtually at Boston College today as part of its Tax Policy Collaborative hosted by James Repetti, Diane Ring, and Shu Yi Oei:


The Tax Cuts and Jobs Act of 2017 introduced the first ever excise tax imposed on the investment income of university endowments. While it is a relatively small tax, this new law is a first step towards the exploration of taxing non-profit entities on the vast sums of wealth they hold in their endowments. In this Essay I take the new tax as a starting place for investigating the justification for tax exemption for universities and thinking through the consequences of changing our approach, both in the form of the new excise tax and possible alternatives. There remain reasons to be skeptical both about the design of the current tax and its ability to withstand the political efforts of the powerful set of universities who will be subject to it. Nonetheless, this new tax opens the door to a discussion of whether it is time to treat universities’ endowments more like the private equity funds they increasingly resemble.

Much of the attention paid to the so-called Tax Cuts and Jobs Act (TCJA) focused on the significant cut in the tax rate assessed to corporations, the creation of a deduction for non-corporate business income under the new § 199A, the elimination of a variety of tax benefits aimed at relatively lower income taxpayers, and the changes to the international tax regime. However, one change to the tax code created under this bill focused in another direction entirely, attempting, for the first time, to tax university endowments.

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October 1, 2021 in Colloquia, Scholarship, Tax, Tax Workshops | Permalink

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October 1, 2021 in About This Blog, Legal Education, Tax | Permalink

Supreme Court To Decide Whether 30-Day Time Limit For Tax Court Appeal Of IRS Determination Is A Jurisdictional Requirement

The Supreme Court yesterday granted certiorari to resolve a circuit split over whether I.R.C. § 6330(d)(1)'s requirement that a petition for Tax Court review of an IRS notice of determination must be filed within 30 days is a jurisdictional requirement or a claim processing rule subject to equitable tolling. Boechler, P.C. v. Commissioner, No-18578 (Order of Dismissal Feb. 15, 2019), aff'd, 967 F.3d 760 (8th Cir. 2020).

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October 1, 2021 in New Cases, Tax | Permalink

Thursday, September 30, 2021

Osofsky Reviews Book's Tax Administration And Racial Justice

Leigh Osofsky (North Carolina; Google Scholar), Racialized Frictions in Tax Administration (JOTWELL) (reviewing Leslie Book (Villanova; Google Scholar), Tax Administration and Racial Justice: The Illegal Denial of Tax Based Pandemic Relief to the Nation’s Incarcerated Population, 72 S.C. L. Rev. ___ (2021)):

JOTWELL Tax (2021)Leslie Book tells the remarkable story of the Coronavirus Aid, Relief, and Economic Security (CARES) Act emergency relief payments and the incarcerated population. In addition to having numerous plot twists and turns, the story underscores an important, underexamined issue: when the government administers the law, it imposes burdens (or frictions) on the public. These burdens may be borne disproportionately by different groups, including along racial dimensions. Anyone interested in agencies, tax administration, or race and the law would benefit from reading Book’s paper. ...

In perhaps the most powerful part of his paper, Book describes, at a theoretical level, how the administration of the law in general can create racialized burdens. Book draws on the work of sociology and public administration scholars to explain that, as a general matter, individuals experience frictions, or burdens, when attempting to collect benefits from or otherwise interact with the government. This insight may be particularly interesting to tax scholars, who have long paid attention to frictions in the substantive tax law, but have paid less attention to how they also operate in tax administration. ...

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September 30, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Medicare For All Vs. Medicare As Is: Eight Key Differences

Richard Kaplan (Illinois; Google Scholar), Medicare for All vs. Medicare As Is: Eight Key Differences, 12 J. Aging L. & Pol’y 115 (2021):

This article examines eight principal differences between the Medicare-for-All proposal championed by Senator Sanders, inter alia, and the Medicare program as it actually exists. In doing so, the article shows how the current program bears little resemblance to what the Medicare-for-All proponents are trying to enact. Those key differences include: (1) Medicare is a real program, (2) Medicare is only health care financing, (3) Medicare is an earned entitlement, (4) Medicare is not a simple program, (5)Medicare has a significant co-insurance component, (6) Medicare’s financing relies on non-Medicare enrollees, (7) Medicare’s coverage of long-term care is minimal, and (8) Medicare can accommodate expansion without major disruption.

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September 30, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

Seto: Modeling The Welfare Effects Of Advertising — Preference-Shifting Deadweight Loss

Theodore P. Seto (Loyola-L.A.; Google Scholar), Modeling the Welfare Effects of Advertising: Preference-Shifting Deadweight Loss, 75 Tax L. Rev. ___ (2022):

This paper explores one of normative economic theory’s most nagging omissions: its failure to model the welfare effects of advertising and other forms of marketing — central features of all modern market economies. Technically, the paper relaxes the standard welfarist assumption that preferences are fixed and exogenous and reflect welfare. Although this assumption is not widely accepted in other social sciences, economics generally treats situations in which it does not hold as deviations from the general rule, and therefore of lesser interest. This paper offers an approach to incorporating within the standard model itself the possibility that marketing can change observed behaviors, and perhaps preferences, in non-welfare-enhancing ways.

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September 30, 2021 in Scholarship, Tax, Tax Scholarship | Permalink

ProPublica: More Than Half Of America’s 100 Richest People Exploit GRATs To Avoid Estate Taxes

ProPublica, More Than Half of America’s 100 Richest People Exploit Special Trusts to Avoid Estate Taxes:

Pro PublicaIt’s well known, at least among tax lawyers and accountants for the ultrawealthy: The estate tax can be easily avoided by exploiting a loophole unwittingly created by Congress three decades ago. By using special trusts, a rarefied group of Americans has taken advantage of this loophole, reducing government revenues and fueling inequality.

There is no way for the public to know who uses these special trusts aside from when they’ve been disclosed in lawsuits or securities filings. There’s also been no way to quantify just how much in estate tax has been lost to them, though, in 2013, the lawyer who pioneered the use of the most common one — known as the grantor retained annuity trust, or GRAT — estimated they may have cost the U.S. Treasury about $100 billion over the prior 13 years.

As Congress considers cracking down on GRATs and other trusts to help fund President Joe Biden’s domestic agenda, a new analysis by ProPublica based on a trove of tax information about thousands of the wealthiest Americans sheds light on just how widespread the use of special trusts to dodge the estate tax has become.

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September 30, 2021 in Tax, Tax News | Permalink

2021 Christopher Bergin Award For Excellence In Tax Writing

Bailey Hans (J.D. 2021, Notre Dame; LL.M. (Tax) 2022, NYU), GoFundMe: The Gift That Keeps on Giving, All Tax Season Long, 172 Tax Notes Fed. 2173 (Sept. 27, 2021):

BerginIn this article, Hans examines the tax consequences of donations made through crowdfunding platforms, focusing on the Duberstein standard and tax policy principles, and she explores ways to provide certainty to donors and donees in the absence of administrative or congressional tax guidance.

This article was entered into Tax Analysts’ annual student writing contest and received the 2021 Christopher E. Bergin Award for Excellence in Writing.

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September 30, 2021 in Legal Ed News, Legal Education, Tax, Tax Analysts, Tax Scholarship, Teaching | Permalink

Schedule VR: The IRS Can Register Voters Just As Well As The DMV

New York Times op-ed:  The I.R.S. Can Register Voters Just as Well as the D.M.V. Maybe Better., Jeremy Bearer-Friend (George Washington) &

Income tax forms are notoriously complicated, but there is one simple question that is missing: “Would you like to register to vote in your home state?” With over 150 million American households filing federal income tax returns each year, our annual ritual of tax filing is a missed opportunity for voter registration.

While Americans are filling out their 1040s and Schedule Cs, they should also be asked if they would like to complete a voter registration form. The form, let’s call it a Schedule VR, would be separate from tax information, and would be available to all citizens, regardless of the amount of taxes paid or refunded. A Schedule VR would be the simplest way to create a national and nearly universal registration system.

There is good evidence that tax-time voter registration would work.

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September 30, 2021 in IRS News, Tax, Tax News | Permalink

Wednesday, September 29, 2021

Huang, Peavey & Kaercher Present Capital Gains And Transfer Tax Policy In The Build Back Better Act Today At UC-Irvine

Chye-Ching Huang, Tabetha Peavey & Michael Kaercher (NYU Tax Law Center) present Capital Gains and Transfer Tax Policy in the Build Back Better Act virtually today at UC-Irvine as part of its Tax Policy Colloquium:

UCI_Law_This session of the colloquium will discuss current administration and Congressional proposals to increase the capital gains rate, replace the step up in basis at death with taxing gains at death or reintroducing a carryover basis rule, and address shortcomings in the current estate and gift tax regime. We will also discuss the NYU Tax Law Center, the motivation behind its creation, and its role in the tax policy world and tax legislative process. 

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September 29, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Tax Profs Urge Court To Reject Chamber Of Commerce And Big Tech’s Legal Challenge To Maryland’s Digital Ad Tax

Democracy Forward, Tax Law Professors Urge Court to Reject Chamber of Commerce and Big Tech’s Legal Challenge to Maryland’s Digital Ad Tax:

Late Monday, tax law professors Darien Shanske and Young Ran (Christine) Kim filed a brief in a lawsuit brought by the Chamber of Commerce and Big Tech challenging Maryland’s first-in-the-nation digital advertising tax. The professors’ brief urges the court to reject the lawsuit brought by industry groups, which seeks to misuse federal law to create a broad tax shelter for extremely profitable digital advertising platforms, including Google, Facebook, and Amazon. The brief was filed on the professors’ behalf by Democracy Forward.

“The plaintiffs’ claims in this case are simply incorrect as a matter of law,” said Darien Shanske, Professor of Law at the University of California, Davis, School of Law. “Furthermore, two important parts of federal law are supposed to keep this kind of creative obstruction from disrupting state revenue collection. First, courts are not supposed to strain to find ways to displace state revenue authority. Second, federal courts in particular are not supposed to be in the business of enjoining state revenue collection.”

“Digital advertising platforms operate in a two-sided market, which makes them fundamentally different from non-digital advertising,” said Young Ran (Christine) Kim, Associate Professor of Law at the University of Utah S.J. Quinney College of Law. “Moreover, the barter transaction side between the platform and Maryland users was not previously taxed. I support Maryland’s Digital Ad Tax because it aims to tax revenues generated by digital advertising platforms that were previously untaxed and that result from barter exchanges with Maryland users.”

Maryland’s digital advertising law imposes a tax on a percentage of revenues that advertising platforms with over $100 million in annual global revenue earn from digital ads that are served in Maryland.

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September 29, 2021 in Tax, Tax News | Permalink

Zelenak: The Deductibility Of Capital Losses In A Mark-to-Market Regime

Lawrence Zelenak (Duke), The Deductibility of Capital Losses in a Mark-to-Market Regime, 172 Tax Notes Fed. 1965 (Sept. 20, 2021):

Tax Notes Federal (2020)In this article, Zelenak considers the extent to which capital losses should be deductible under a mark-to-market regime applicable to the tradable assets of wealthy taxpayers, as advocated by Senate Finance Committee Chair Ron Wyden, D-Ore., in a 2019 paper.

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September 29, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

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 September 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)  202,404 1 Reuven Avi-Yonah (Michigan) 8,058
2 Dan Shaviro (NYU) 123,491 2 Lily Batchelder (NYU) 4,518
3 Lily Batchelder (NYU) 122,414 3 David Kamin (NYU) 4,067
4 Daniel Hemel (Chicago) 120,909 4 Bridget Crawford (Pace) 4,062
5 David Gamage (Indiana-Bloom.) 119,638 5 Kim Clausing (UCLA)     3,988
6 Darien Shanske (UC-Davis) 112,712 6 Daniel Hemel (Chicago) 3,845
7 David Kamin (NYU) 110,183 7 D. Dharmapala (Chicago) 3,497
8 Cliff Fleming (BYU)    106,351 8 Ruth Mason (Virginia) 3,289
9 Manoj Viswanathan (Hastings) 103,237 9 Richard Ainsworth (Boston Univ.) 2,668
10 Rebecca Kysar (Fordham) 102,343 10 Zachary Liscow (Yale) 2,437
11 Ari Glogower (Ohio State) 101,453 11 David Gamage (Indiana-Bloom.) 2,411
12 Michael Simkovic (USC) 45,852 12 Margaret Ryznar (Indiana-Indy)   2,383
13 D. Dharmapala (Chicago) 45,282 13 Robert Sitkoff (Harvard) 2,325
14 Paul Caron (Pepperdine) 38,633 14 Darien Shanske (UC-Davis)  2,185
15 Louis Kaplow (Harvard) 35,624 15 Dan Shaviro (NYU) 2,158
16 Richard Ainsworth (Boston Univ.) 33,224 16 Yariv Brauner (Florida) 2,057
17 Bridget Crawford (Pace) 28,849 17 Louis Kaplow (Harvard) 2,017
18 Ed Kleinbard (USC) 27,942 18 Hugh Ault (Boston College) 2,015
19 Vic Fleischer (UC-Irvine) 27,728 19 Brad Borden (Brooklyn) 1,715
20 Robert Sitkoff (Harvard) 27,014 20 Diane Ring (Boston College) 1,560
21 Brad Borden (Brooklyn) 26,749 21 Francine Lipman (UNLV) 1,527
22 Jim Hines (Michigan) 26,099 22 Shu-Yi Oei (Boston College)  1,402
23 Ted Seto (Loyola-L.A.) 25,170 22 Vic Fleischer (UC-Irvine) 1,402
24 Katie Pratt (Loyola-L.A.) 24,718 24 Michael Simkovic (USC) 1,385
25 Richard Kaplan (Illinois) 24,601 25 Paul Caron (Pepperdine)   1,289

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September 29, 2021 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax Scholarship | Permalink

U.S. Tax Court's Tax Trailblazers: Judge Juan F. Vasquez

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

Juan-f-vasquezPlease join the United States Tax Court in honoring National Hispanic American Heritage Month. September's webinar will focus on Tax Court Judge Juan F. Vasquez and his path to and success in-the field of tax law. Today at 7:00-8:15 PM EST (register here).

Judge Juan F. Vasquez was born in San Antonio, Texas and graduated from Fox Tech High School and San Antonio Junior College with an Associate's Degree in Data Processing. He received a B.B.A. in Accounting from the University of Texas, Austin, and a J.D. from the University of Houston Law Center. He received his LL.M. in Taxation from New York University School of Law. In addition to being a member of the legal bar, Judge Vasquez is a Certified Public Accountant.

Originally appointed for a 15-year term by President Clinton, Judge Vasquez was reappointed by President Obama for a second 15-year term. Judge Vasquez assumed senior status in 2018 and continues to perform judicial duties on recall.

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September 29, 2021 in Legal Ed News, Legal Education, Tax, Tax News | Permalink

Tuesday, September 28, 2021

Hemel Presents Law And The New Dynamic Public Finance Today At NYU

Daniel Hemel (Chicago; Google Scholar) presents Law and the New Dynamic Public Finance virtually at NYU today as part of its Tax Policy and Public Finance Colloquium hosted by Daniel Shaviro:

Hemel_danielOver the last two decades, a new movement in academic economics has challenged conventional wisdoms in optimal tax theory and generated fresh insights for real-world tax policy. Known as “the new dynamic public finance,” this movement has altered the way that economists think about labor income taxation, capital taxation, and the credibility of tax policy over time. Along the way, the NDPF literature has identified new justifications for previously perplexing features of the existing tax-and-transfer system and has called other elements of the status quo into serious question.

Mainstream economics has embraced the new dynamic public finance revolution. All the top peer-reviewed economics journals publish NDPF papers. Undergraduate public finance textbooks cover basic NDPF concepts. But legal scholars—including scholars of tax law—have largely ignored the emergence of NDPF. One notable exception is Daniel Shaviro, whose 2007 article “Beyond the Pro-Consumption Tax Consensus” highlighted NDPF’s implications for income-averaging proposals and the choice between income and consumption tax bases.3 Since then, though, only seven law review articles in the Westlaw database have even mentioned “the new dynamic public finance,” and none has sought to take stock of NDPF’s wide-ranging implications for legal analysis.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Hoopes Presents Tax Boycotts Today At Georgetown

Jeff Hoopes (North Carolina; Google Scholar) presents Tax Boycotts (with H. Scott Asay (Iowa; Google Scholar), Jacob Thorndock (BYU; Google Scholar) & Jaron Wilde (Iowa; Google Scholar)) virtually at Georgetown today as part of its Tax Law and Public Finance Workshop hosted by Brian Galle:

Jeff-hoopesTo what extent do consumers boycott in response to corporate tax planning? Anecdotes suggest consumer boycotts are a meaningful deterrent to tax planning, but empirical evidence on their frequency and impact is lacking. We undertake a comprehensive study to examine how consumers’ purchase behavior relates to corporate tax planning. First, we survey a representative sample of U.S. consumers and find that more than a third of survey participants report having boycotted a firm, but zero report having done so for taxes. Next, we use a granular dataset of nationwide Nielsen weekly purchase transactions to analyze consumer purchase behavior around corporate tax planning news events. Across a battery of tests, we find little evidence of changes in actual consumer purchase behavior in response to tax news.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Goldin Presents Whose Child Is This? Improving Child-Claiming Rules In Safety Net Programs Today At UC-Hastings

Jacob Goldin (Stanford; Google Scholar) presents Whose Child is This? Improving Child-Claiming Rules in Safety Net Programs (with Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar)) virtually at UC-Hastings today as part of its 2021 Tax Speaker Series hosted by Heather Field and Manoj Viswanathan:

Goldin (2021)To address the staggering problem of child poverty in the United States, Congress may soon enact a child allowance akin to those in other high-income countries. As lawmakers debate doing so, they must consider the design of rules that determine how benefits are distributed. Among the more important of these are “child-claiming” rules. These rules determine which adults can receive benefits for which children, driving how well a program helps recipients and satisfies public goals.

This Article critically assesses the design of child-claiming rules for safety net programs, using as case studies the Child Tax Credit (CTC) and Earned Income Tax Credit (EITC). It considers how best to design child-claiming rules to achieve specific program goals, the foremost of which is supporting children’s well-being. This analysis illustrates that no single rule regime dominates for any given goal or goals. Rather, policymakers compromise between important objectives such as channeling benefits to children’s caregivers and providing flexibility to claimants’ households. Informed by a principle-driven framework, the Article considers how best to navigate these difficult tradeoffs and proposes specific child-claiming rules under several different benefit structures.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Mayer Presents What Is Caesar's, What Is God's: Fundamental Public Policy For Churches Today At San Diego

Lloyd Hitoshi Mayer (Notre Dame; Google Scholar) presents What is Caesar's, What is God's: Fundamental Public Policy for Churches, 44 Harv. J.L. & Pub. Pol'y 145 (2021), virtually at San Diego today as part of its Tax Law Speaker Series co-hosted with San Diego's Institute for Law and Religion:

Lloyd-mayerBob Jones University v. United States is a highly debated Supreme Court decision, both regarding whether it was correct and what exactly it stands for, and a rarely applied one. Its recognition of a “fundamental public policy doctrine” that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case, and Congress has shown no desire to change the underlying statutes to alter the case’s result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances.

The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than avoiding racial discrimination in education might qualify as fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case. The IRS has taken the position that churches are no different than any other tax-exempt organizations in this context, although it has only denied or revoked the tax-exempt status of a handful of churches based on this doctrine.

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September 28, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Aprill & Mayer: Tax Exemption Is Not A Subsidy — Except For When It Is

Ellen P. Aprill (Loyola-L.A.) & Lloyd Hitoshi Mayer (Notre Dame; Google Scholar), Tax Exemption Is Not a Subsidy — Except for When It Is, 172 Tax Notes Fed. 1887 (Sept. 20, 2021):

Tax Notes Federal (2020)In this report, Aprill and Mayer argue that there is no uniform answer to the question whether a tax exemption is a subsidy, and they urge policymakers and exempt organizations to note the distinctions when changes to laws or other guidance regarding exemption are under consideration.

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September 28, 2021 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink

Peter Thiel Gamed Silicon Valley, Donald Trump, And Democracy To Make Billions, Tax-Free

Bloomberg Businessweek, Peter Thiel Gamed Silicon Valley, Donald Trump, and Democracy to Make Billions, Tax-Free:

American OligarchIn an exclusive excerpt from The Contrarian, a new biography, the disruption-preaching power broker is revealed as just another rich guy desperate to keep his fortune from the IRS.

Trump’s presidency would not end badly for Thiel, who didn’t comment for this article, adapted from my forthcoming book, The Contrarian. Thiel’s companies would win government contracts, and his net worth would soar—and it would, crucially, remain in the legal tax shelter that he’s spent half his career trying to protect. As a venture capitalist, Thiel had made it his business to find up-and-comers, invest in their success, and then sell his stock when it was financially advantageous to do so. Now he was doing the same with a U.S. president.

Thiel is sometimes portrayed as the tech industry’s token conservative, a view that wildly understates his power. More than any other living Silicon Valley investor or entrepreneur—more so even than Bezos, or Page, or Facebook co-founder and Thiel protégé Mark Zuckerberg—he has been responsible for creating the ideology that has come to define Silicon Valley today: that technological progress should be pursued relentlessly, with little if any regard for potential costs or dangers to society. Thiel isn’t the richest tech mogul, but he has been, in many ways, the most influential. ...

By the fall of 2020, published estimates were putting Thiel’s personal net worth at around $5 billion, roughly double what it had been before Trump was elected. This was a reflection of his stake in Palantir, which had gone public in August at a valuation of around $20 billion. Thiel then owned about 20% of the company and also held stakes in a number of others whose fortunes had soared. Besides Anduril, there was SpaceX, which was now worth as much as $100 billion thanks in part to a booming business with the federal government, and Airbnb, which had recently gone public. By any financial measure, it had been a good four years.

But those who know Thiel say that even these estimates were probably way too conservative and that his true net worth was closer to $10 billion, possibly much more. That was partly because he had quietly accumulated stakes in a handful of private companies with exceedingly high valuations, including the online payments startup Stripe; a person close to Thiel figures his share is worth at least $1.5 billion. But it was also because Thiel was shielding a large percentage of his investment assets from taxes of any kind.

The strategy was legal, even if it was, from the standpoint of any normal sense of fairness, outrageous.

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September 28, 2021 in Book Club, Tax, Tax News | Permalink

Monday, September 27, 2021

Kleiman Presents Impoverishment By Taxation At UC-Irvine

Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar) presented Impoverishment by Taxation, 170 U. Pa. L. Rev. ___ (2022), virtually at UC-Irvine last Thursday as part of its Intellectual Life Workshop Series:

6606Viewed in the aggregate, the U.S. fiscal system is progressive, reduces inequality, and cuts poverty. The system improves on market outcomes by transferring income from rich to poor. Yet this bird’s eye view rings hollow on the ground, where millions of low-income taxpayers across the United States are made poor or poorer by paying their state and federal taxes. In truth, while the U.S. fiscal system may be broadly equalizing and poverty reducing, for many struggling households, it is impoverishing.

This Article offers a new way to measure taxation of low-income households in the United States, presenting a concept called fiscal impoverishment. Taxpayers are fiscally impoverished when they are made poor or poorer by paying state and federal taxes, after accounting for the offsetting cash or near-cash public benefits they receive. Distinct from the aggregate and anonymous measures by which we typically assess our tax and transfer system, fiscal impoverishment is dynamic and individualized. It highlights individual human dignity and implicates the economic responsibilities of the state vis-à-vis low-income taxpayers.

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September 27, 2021 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops | Permalink

Kades Presents A New Feudalism: Selfish Genes, Great Wealth And The Rise Of The Dynastic Family Trust Today At Loyola-L.A.

Eric Kades (William & Mary; Google Scholar) presents A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust virtually today at Loyola-L.A. as part of its Tax Policy Colloquium.

KadesToday’s record levels of economic inequality are infecting our future as the top 0.01% bequest vast wealth to their descendants. With the death of the Rule Against Perpetuities (RAP), this inequality has the potential to harden social class lines not just for a generation or two but forever. Although it may sound implausible, interviews with estate lawyers serving very high net worth clients reveal that some of the wealthiest tier of testators are already exploiting the RAP’s elimination, along with a tax loophole, to establish dynasty trusts that will financially empower their bloodline as long as it continues.

Evolutionary biologists will not be surprised by this finding. Recent work in their field shows a universal and powerful human drive for high status descendants — a drive for “quality” progeny so powerful that it appears to trump the usual desire to maximize quantity of offspring. Coupled with the long history of dynastic family wealth in England, this science suggests that today’s wealthiest testators will utilize powerful modern legal institutions (e.g. well-developed laws of contract and trust; deep and efficient capital markets) to forge a new sort of trust that I dub a Dynastic Family Trust (DFT). These DFTs will be larded with innovative provisions leveraging a founder’s wealth to maximize descendants’ status for generation after generation.

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September 27, 2021 in Scholarship, Tax, Tax Workshops | Permalink