Blue J Predicts: The Economic Substance Doctrine And Excise Tax Credits Related To Alcohol-Fuel Mixtures

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Christopher Yan (Senior Legal Research Associate, Blue J Legal), Chemoil: Economic Substance, Tax Credits, and Unprofitable Ventures, 177 Tax Notes Fed. 719 (Oct. 31, 2022):

In this article, Alarie and Yan analyze the economic substance arguments in Chemoil, an ongoing refund suit involving otherwise unprofitable sales of an alcohol-fuel mixture for which the taxpayer was denied excise tax credits under section 6426.

In this month’s Blue J Predicts column, we examine the parties’ economic substance arguments in the ongoing litigation in Chemoil. The case involves tax refunds denied by the IRS for excise tax credits related to alcohol-fuel mixtures. The topic discussed in Chemoil bears a close relationship to last month’s installment of Blue J Predicts, in which we correctly predicted that the D.C. Circuit in Cross Refined Coal would rule for the taxpayer, holding that a business venture that was guaranteed to be unprofitable pretax (and became profitable only after tax credits) could still be considered a bona fide partnership for federal income tax purposes. Similarly, the Chemoil dispute provides an opportunity to explore the relationship between the economic substance doctrine and unprofitable transactions that are rendered economically viable by tax credits.

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Avi-Yonah: Fixing Tax Law's APA Problem

Reuven S. Avi-Yonah (Michigan; Google Scholar), Fixing Tax Law's APA Problem, 177 Tax Notes Fed. 981 (Nov. 14, 2022):

In this article, Avi-Yonah examines the post-Mayo revolution that has occurred in the application of the Administrative Procedure Act to tax regulations, and he offers two solutions to the problem of using notice and comment for those regs.

The APA Tax Revolution
Since the Supreme Court decided in Mayo that tax regulations are subject to the Administrative Procedure Act’s notice and comment procedures because they are not always interpretive rules (as Treasury had previously believed), there has been a revolution in applying the APA to tax regulations. In many cases, courts have declared tax regulations and notices invalid because they either did not follow proper APA notice and comment procedures, or did not adequately take into consideration adverse comments received during the procedure.

This revolution was led to a significant extent by one academic — professor Kristin Hickman of the University of Minnesota Law School — who has repeatedly argued that all tax regulations issued under section 7805 are legislative and therefore must be adopted through notice and comment [Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements, 82 Notre Dame L. Rev. 1727 (2007)].

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Call For Papers: 2023 Tax Notes Student Writing Competition

Tax Notes Student Writing Competition:

The 2023 submission period for the Tax Notes Student Writing Competition is now open! Each year we recognize superior student writing on unsettled questions in tax law or policy. Learn more about the competition guidelines:

• Eligibility: The competition is open to any student enrolled in a law, business, or public policy program during the 2022-2023 academic year. Each student may submit only one paper. Coauthored papers will be accepted. 
• Format: Entries should be a minimum of 2,500 words and a maximum of 12,000 words, including footnotes. Citations should be formatted as footnotes in accordance with the latest edition of The Bluebook: A Uniform System of Citation. Bibliographies and reference lists are prohibited. Articles should be submitted as Microsoft Word documents.

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Taxation Of NFT Transactions

Michael Lukacs (EY, New York), Oren Margulies (EY, Washington, D.C.) & Lakshmi Jayanthi (EY Boston), ABCs of NFTs: Key Tax Considerations, 177 Tax Notes Fed. 819 (Nov. 7, 2022):

In this article, the authors explain what nonfungible tokens (NFTs) are, how various parties engage in NFT transactions, and how NFTs are exploited commercially, and they answer common questions about the taxation of NFT transactions — a subject on which there is no direct guidance.

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Cummings: Tax Exceptionalism Is Overblown

Jasper L. Cummings, Jr., Tax Exceptionalism Overblown, 177 Tax Notes Fed. 225 (Oct. 10, 2022):

In this article, Cummings argues that the concept of tax exceptionalism has been wildly overstated and used mostly by tax avoiders, and he contends that, unlike some good ideas, the concept isn’t worth overstating. ...

A large crop of professors, brief authors, and article writers have gleefully claimed that some amorphous malady they call “tax exceptionalism” is dead, citing Mayo’s statements about National Muffler. The claim serves as an all-purpose ground for winning most any argument with the IRS. The flaws in their scholarship might be overlooked if they weren’t so darn happy about it. They all seem delighted to assert that the IRS and Treasury were taken down a peg by the Mayo opinion, often without noticing that Mayo held for the IRS and applied Chevron deference to a Treasury regulation. So if you want to take the IRS down a peg, Mayo isn’t your best cite.

The professorial criticism of a claimed insularity of tax professionals didn’t begin with National Muffler or Mayo or even professor Kristin Hickman. It dates to at least the early 1990s, when Paul Caron penned “Tax Myopia, or Mamas Don’t Let Your Babies Grow Up to Be Tax Lawyers [13 Va. Tax Rev. 517 (1994).] ” Again, a catchy title coupled with amusing criticism of the sometimes-self-important group known as tax lawyers kicked off a season of derision for pastimes such as trying to discover the meaning of the code by reading legislative history. Caron was able to enlist professor Boris I. Bittker in his cause.

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Todd: Bitner And The FBAR’s Muddy Morass—Shining A Light With Interpretive Tools

Following up on this morning's post, WSJ: The IRS And The 8th Amendment:  Timothy M. Todd (Liberty), The FBAR’s Muddy Morass: Shining a Light With Interpretive Tools, 177 Tax Notes Fed. 179 (Oct. 10, 2022):

In this report, Todd tackles the question of whether foreign bank account report penalties should apply per account or per form through unit-of-prosecution analysis and a survey of similar misstatement regimes.

Introduction
The Supreme Court has granted certiorari to resolve a circuit split over the proper interpretation of the Bank Secrecy Act’s penalty regime for foreign bank account report violations. The question presented is “whether a ‘violation’ under the Act is the failure to file an annual FBAR (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported.” In other words, does an FBAR violation result from each failure to report a particular foreign bank account, or does a violation result from the singular failure to file an FBAR for the year, regardless of the accounts at issue?

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Kamin: The Ambition, Limits, And Politics Of The Global Minimum Tax

David Kamin (NYU), Why Book Minimum Taxes? Taking Politics Seriously, 177 Tax Notes Fed. 193 (Oct. 10, 2022):

In this article, Kamin explores the political and institutional challenges that the book minimum tax seeks to address, and he concludes that the case for it in the international context is strongest even though it has been used to overcome detrimental interest-group politics in the domestic context. ...

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2022 Tax Notes Student Writing Competition Winner: The Intersection Of Tax And The Art Market

Arielle Zhivko (J.D. 2024, Osgoode Hall), Concealed Masterpieces: The Intersection of Taxation and the Art Market, 176 Tax Notes Fed. 2075 (Sept. 26, 2022) (1st Place: Tax Notes Student Writing Competition):

In this article, Zhivko explores how the collection of art has morphed into a highly appealing outlet for tax evasion and avoidance and examines the evolution of art-related tax reforms and their adverse effects. She also weighs the global justice aspects of taxation and subsidies against the need for access to educational and cultural materials provided by art and museums.

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Blue J Predicts: Tax Credits That Bond A Partnership

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Bettina Xue Griffin (Senior Legal Research Associate, Blue J Legal), Tax Credits That Bond a Partnership: Revisiting Cross Refined Coal, 176 Tax Notes Fed. 2069 (Sept. 26, 2022):

In this article, Alarie and Griffin revisit Cross Refined Coal, a case for which they used Blue J’s analytical software to successfully predict in June 2021 that the IRS’s appeal would be decided in favor of the taxpayer.

In our monthly Blue J Predicts column, we use Blue J’s tax research software to analyze pending or recently decided federal income tax cases. This month we consider the judgment of the D.C. Circuit in Cross Refined Coal, which addressed whether a business venture that was guaranteed to be unprofitable pretax could still be considered a bona fide partnership for federal income tax purposes. ...

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Gamage & Shanske: Phased Mark-To-Market For Billionaire Income Tax Reforms

David Gamage (Indiana; Google Scholar) & Darien Shanske (UC-Davis; Google Scholar), Phased Mark-to-Market for Billionaire Income Tax Reforms, 176 Tax Notes Fed. 1875 (Sept. 19, 2022):

In this installment of Academic Perspectives on SALT, Gamage and Shanske advocate for phased mark-to-market as a mechanism for reforming the taxation of investment gains of billionaires and megamillionaires. ...

Conclusion
As the recent passage of the federal Inflation Reduction Act (H.R. 5376) demonstrates, one never knows when the stars might align for a policy proposal.

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Mason: A Wrench In The GLOBE's Diabolical Machinery

Ruth Mason (Virginia; Google Scholar), A Wrench in the GLOBE's Diabolical Machinery, 99 Tax Notes Int'l 1391 (September 19, 2022):

In this article, Mason explains how the global anti-base-erosion rules induce cooperation by states, and how the proposal to enact those rules via a directive in the European Union undermines that inducement to cooperate.

Conclusion
This no-exit quality of the GLOBE rules motivated commentators at the International Fiscal Association to describe it as devilish and diabolical. No state can escape its logic or after adoption reaches a critical mass its reach. It trips states of an effective means of defection rom the cooperative outcome.

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Sanchirico: Digital Services Taxes This Time Around

Chris William Sanchirico (Penn; Google Scholar), Digital Services Taxes This Time Around, 176 Tax Notes Fed. 2041 (Sept. 26, 2022):

The United States currently has an effectively exclusive taxing right on the high-tech foreign profits of its multinationals — a right it leaves largely unexercised. This has been unacceptable to U.S. trading partners for some time. On the other hand, recent reform proposals from the OECD are unacceptable to a decisive faction of U.S. legislators. This article proposes a more modest resolution to the conflict that, although far from ideal, might actually have a chance of meeting the main concerns of both skeptical U.S. lawmakers and exasperated U.S. allies.

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McMahon: Taxing Prison Work

Stephanie Hunter McMahon (Cincinnati), Prison Work Is Taxing and Should Be Taxed, 176 Tax Notes Fed. 1585 (Sept. 5, 2022):

In this article, McMahon advocates for Congress to enact when possible, and otherwise to push for, an expansion of the social safety net for prison labor on terms consistent with that for non-incarcerated workers, taking into account the prison context.

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Avi-Yonah: Medtronic II And The Profit-Shifting Problem

Reuven S. Avi-Yonah (Michigan; Google Scholar), Medtronic II and the Profit-Shifting Problem, 176 Tax Notes Fed. 1575 (Sept. 5, 2022):

In this article, Avi-Yonah looks at the Tax Court’s recent Medtronic II [v. Commissioner, T.C. Memo. 2022-84 (Aug. 18, 2022)] decision and considers how the new corporate alternative minimum tax may provide a solution to the problem of adjudicating transfer pricing in the absence of comparables.

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Blue J: Deducting Legal Expenses In Mylan

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Kim Condon (Senior Legal Research Associate, Blue J Legal), Deducting Legal Expenses: Unpacking the IRS's Appeal in Mylan, 176 Tax Notes Fed. 1419 (Aug. 29, 2022):

In this article, Alarie and Condon use machine-learning models to evaluate the strength of the IRS’s argument that the Tax Court in Mylan [v . Commissioner, 156 T.C. 137 (2021)], erred in holding that a generic drug manufacturer is not required to capitalize litigation expenses incurred in defending against patent infringement suits and instead may deduct them as ordinary and necessary business expenses.

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

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

This article provides a detailed analysis of tenancy-in-common arrangements and shows how fixed-price put options to sell such interests undermine the classification of such arrangements as tenancies-in-common for federal income tax purposes. The article is reminder that there are limits to the types of terms that co-owners can adopt when they structure tenancies-in-common.

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McMahon: Using The Tax System To Ease Some Of The Dobbs Hardship

Stephanie Hunter McMahon (Cincinnati), Using the Tax System to Ease Some of the Dobbs Hardship, 176 Tax Notes Fed. 1105 (Aug. 18, 2022):

Through Dobbs, the Supreme Court has ensured that many women throughout this country won’t have access to abortion in their home states. Even before Dobbs, however, many states had extremely limited access to this medical care. For many women to exercise their fundamental human right to abortion and attendant healthcare, it has been necessary that they travel sometimes hundreds of miles and often pay significant sums. That cost is an economic hardship in addition to the other hardships imposed by states that refuse to recognize a woman’s right to an abortion.

This article doesn’t have an answer for the Dobbs decision; it merely provides information about the resources in the IRC to help those with limited access to abortion.

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Shaheen: Whirlpool — Law Or Policy?

Fadi Shaheen (Rutgers; Google Scholar), Whirlpool: Law or Policy?, 176 Tax Notes Fed. 959 (Aug. 8, 2022):

In this article, Shaheen argues that while two U.S. courts reached the desirable policy result in the Whirlpool case [Whirlpool Financial Corp. v. Commissioner, 154 T.C. 142 (2020), aff’d, No. 13986-17 (6th Cir. 2021)], their conclusion that the foreign base company sales income branch rule applies not only to sales branches but also to manufacturing branches is inconsistent with the statutory text.

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Avi-Yonah & Wells: Pillar 2 And The Corporate AMT

Reuven Avi-Yonah (Michigan; Google Scholar) & Bret Wells (Houston; Google Scholar), Pillar 2 and the Corporate AMT, 176 Tax Notes Fed. 953 (Aug. 8, 2022):

In this article, Avi-Yonah and Wells argue that the corporate alternative minimum tax proposed in the Inflation Reduction Act of 2022 would put the United States in a better position than current law, and arguably even better than would a tax reform package that included a conforming global intangible low-taxed income regime but no book-based corporate minimum tax.

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Ordower: Block Rewards, Carried Interests, And Other Valuation Quandaries In Taxing Compensation

Henry Ordower (St. Louis; Google Scholar), Block Rewards, Carried Interests, and Other Valuation Quandaries in Taxing Compensation, 175 Tax Notes Fed. 1551 (June 6, 2022):

In this article, Ordower contextualizes block rewards litigation with historical failures to tax compensation income paid in kind. Tax fairness principles demand current taxation of the noneconomically diluting block rewards’ market value.

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Blue J: Accurate Financial Recordkeeping And Business Deductions

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Kathrin Gardhouse (Legal Research Associate, Blue J Legal), Situational Awareness: Accurate Financial Recordkeeping and Business Deductions, 176 Tax Notes Fed. 713 (Aug. 1, 2022):

In this article, Alarie and Gardhouse explore the Tax Court decision in Skolnick [v. Commissioner, T.C. Memo. 2021-139 (Dec. 16, 2021)], which emphasizes the importance of keeping accurate financial records for activities that may be subject to IRS scrutiny regarding their business nature.

Conclusion
The Tax Court decision in Skolnick emphasizes the importance of keeping accurate financial records of activities that may be subject to IRS scrutiny regarding their business nature. Whether this is the case can be most easily determined with a machine-learning tool such as Blue J’s section 162 trade or business predictor.

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The Tax Treatment Of The Metaverse Economy And The Potential For A New Offshore Tax Haven

Jeffrey Owens & Nathalia Oliveira Costa (Vienna University of Economics & Business), The Tax Treatment of the Metaverse Economy and the Potential for a New Offshore Tax Haven, 176 Tax Notes Fed. 657 (Aug. 1, 2022):

In this article, Owens and Oliveira Costa consider how the development of the metaverse, cryptocurrencies, and non-fungible tokens could fundamentally change established tax concepts and the way tax compliance functions.

Future Research
The metaverse, with its unimaginable potential, will continue to be the subject of a complex and wide-ranging discussion. Virtual worlds are still part of our physical world and, as such, they must be subject to laws, taxes, and rules. This article merely scratches the surface of some of the metaverse’s tax challenges, and there are more questions than answers.

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Avi-Yonah & Gamage: Billionaire Mark-To-Market Reforms

Reuven Avi-Yonah (Michigan; Google Scholar) & David Gamage (Indiana; Google Scholar), Billionaire Mark-to-Market Reforms: Response to Susswein and Brown, 176 Tax Notes Fed. 555 (July 25, 2022):

In their essay, Is It Time to Tax Disney’s Unrealized Capital Gains From 1965?, [176 Tax Notes Fed. 1717 (June 13, 2022),] Donald B. Susswein and Kyle Brown argue that a mark-to-market reform like the recent proposals for billionaire income tax reforms would amount to double taxation. We explain here why their arguments are incorrect. Instead, the primary impact of enacting a billionaire income tax reform would be to close the loopholes and combat the harmful political-optionality dynamics that enable many billionaire and megamillionaire taxpayers to fully and permanently escape income taxation on the majority of their true investment gains.

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ABA Tax Section|Tax Analysts Public Service Tax Fellowship Application Deadline Extended

ABA Tax Section has extended the application deadline to August 15 for the Tax Analysts Public Service Fellowship:

The ABA Tax Section and Tax Analysts (the publisher of Tax Notes) have partnered to launch a new public interest fellowship to start this September. Tax Analysts Public Service Fellows will be funded by Tax Analysts to work for two years practicing public interest tax law. The fellowship is geared toward either those with an LLM in tax or experienced attorneys including those seeking to move into the public interest sector. The inaugural fellow will work at La Posada Tax Clinic in Twin Falls, Idaho. You can learn more about Bob Wunderle, who runs La Posada, and his important work providing a range of tax services to vulnerable populations including farm workers throughout the state of Idaho in this podcast from Tax Notes. Applications are due August 15 – the application and more information are available here.

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No New Tax Cuts? Examining The Rescue Plan's New State Tax Limits

Conor Clarke (DOJ; Google Scholar) & Edward G. Fox (Michigan; Google Scholar), No New Tax Cuts? Examining the Rescue Plan's New State Tax Limits, 103 Tax Notes St. 1361 (Mar. 28, 2022):

In this article, Clarke and Fox examine the American Rescue Plan Act’s restrictions on state tax cuts, arguing that the restrictions are a variation on more familiar maintenance-of-effort provisions. These provisions are common, and are designed to help ensure that federal grants supplement rather than supplant state spending by requiring the state to maintain its level of spending on a program. Clarke and Fox conclude that the Rescue Plan’s requirements create similar incentives, and argue that the similarity makes it more likely that the act’s tax provisions are consonant with the Constitution’s spending clause.

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Mason & Knoll: The Dormant Foreign Commerce Clause After Steiner

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

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

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

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

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

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

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

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Blue J: Reserve Mechanical Microcaptive Insurance Arrangement Denied On Appeal

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

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

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

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

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Marian: The Taxation Of Block Rewards

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

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

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Avi-Yonah & Salaimi: A New Framework For Taxing Cryptocurrencies

Reuven Avi-Yonah (Michigan; Google Scholar) & Mohanad Salaimi (S.J.D. 2022, Michigan), A New Framework for Taxing Cryptocurrencies, 175 Tax Notes Fed. 1391 (May 30, 2022):

In this article, Avi-Yonah and Salaimi propose a new framework for taxing cryptocurrency throughout its life cycle. This article summarizes Avi-Yonah and Salaimi, A New Framework for Taxing Cryptocurrencies (Mar. 31, 2022).

This article describes a proposal to tax cryptocurrencies based on their unique features.1 It argues that while various ways of earning or receiving crypto tokens (for example, mining in proof-of-work (PoW) protocols like bitcoin and staking in proof-of-stake (PoS) protocols like ether) generate taxable income, the tax results should take into account positive and negative externalities. It also claims that because of its volatility, crypto should not be taxed until tokens are exchanged for real-world items like fiat currency or goods and services. Finally, this article argues that when crypto tokens are exchanged for fiat currencies or goods and services, they should be treated as foreign currency if held for less than one year. ...

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Blue J's AI Prediction Of Result Of Tax Court Appeal Faces First Test In Federal Circuit Court

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Christopher Yan (Senior Legal Research Associate, Blue J Legal), Disguised Distributions and Management Fees: Aspro Revisited, 175 Tax Notes Fed. 1401 (May 30, 2022):

In this article, Alarie and Yan analyze the Eighth Circuit’s recent decision in Aspro concerning the deductibility of management fees the business paid to its shareholders.

In our Blue J Predicts column we use advances in machine learning to analyze pending or recently decided federal income tax cases. This month we follow up on the appeal of a Tax Court decision that we first examined in October 2021. In Aspro, the taxpayer challenged the IRS’s determination that the “management fees” it paid were not deductible because they were disguised corporate distributions of profits. Our initial analysis focused on the pending appeal and on April 26 the Eighth Circuit released its opinion, upholding the Tax Court’s decision. This is the first time a case we have examined in Blue J Predicts has been decided by an appellate court since we began the column in mid-2021.

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ABA Tax Section|Tax Analysts Public Service Tax Fellowship

ABA Tax Section, Tax Analysts Public Service Fellowship:

In response to a need for tax legal assistance for low-income taxpayers, to foster a greater interest in tax-related public service, and to provide seasoned attorneys the opportunity to move into the public interest sector, the ABA Tax Section is pleased to announce a partnership with Tax Analysts to launch the Tax Analysts Public Service Fellowship.

This two-year fellowship offers practicing tax attorneys the opportunity to work in public interest tax law with a nonprofit organization or government entity. For the initial year, the fellow will be based at La Posada Tax Clinic in Twin Falls, Idaho. This powerful nonprofit provides extensive free tax services throughout the state of Idaho.

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Colella: Crispino Upholds IRS Mailbox Rule Reg

Frank G. Colella (Pace), ‘But I Mailed It’ — Crispino Upholds IRS Mailbox Rule Regulation, 173 Tax Notes Fed. 1479 (Dec. 13, 2021):

In Crispino, the U.S. District Court for the District of New Jersey held that taxpayers cannot introduce extrinsic evidence under the common law mailbox rule to establish timely filing of their claim for refund and, accordingly, dismissed the refund action for lack of jurisdiction. Crispino, a decision appealable to the Third Circuit, upheld the IRS’s position that the only means to satisfy section 7502, the statutory “mailbox rule,” is by proper compliance with reg. section 301.7502- 1(e)(2), which requires proof of certified or registered mailing when the IRS alleges that it has not received a document.

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Louis Brandeis, Antitrust, And A Functioning Tax System

Jasper L. Cummings, Jr. (Alston & Bird, Raleigh, NC), Louis Brandeis, Antitrust, and a Functioning Tax System, 175 Tax Notes Fed. 241 (Apr. 11, 2022):

In this article, Cummings wonders what happened to Justice Louis Brandeis’s approach to deciding federal tax cases and whether it has anything to do with antitrust policy. ...

Justice Louis D. Brandeis was one of that small group of justices who wore the “tax wreath” during his tenure on the Supreme Court from 1916 to 1939. The chief justices assigned him the routine opinions in tax cases, which usually involved complex business arrangements or difficult but small-bore interpretational issues, or both. His fellow justices honored him by almost never dissenting or even concurring, and the few times they did, never writing a rebuttal to his reasoning.

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Sanchirico: Should A Global Minimum Tax Be Country-By-Country?

Chris William Sanchirico (Penn; Google Scholar), Should a Global Minimum Tax Be Country-by-Country?, 175 Tax Notes Fed. 549 (Apr. 25, 2022):

In this report, Sanchirico questions the consensus view that a country-by-country approach to global minimum tax design is superior to one based on across-country averaging.

Conclusion
This report shows in the context of a simple game theoretic model that a global minimum tax regime that operates on a country-by-country basis is not necessarily superior to one that is based on global averaging — at least not from the perspective of the high-tax jurisdictions spearheading reform.

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Blue J Predicts With 86% Confidence Debt-Equity Decision In Tribune Media

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Kathrin Gardhouse (Senior Legal Research Associate, Blue J Legal), The Debt-Equity Distinction and Tribune Media, 175 Tax Notes Fed. 593 (Apr. 25, 2022):

In this article, Alarie and Gardhouse use the Blue J debt-equity predictor to analyze part of the Tax Court’s recent decision in Tribune Media [v. Commissioner, T.C. Memo. 2021-122 (Oct. 26, 2021)]. ...

Common law debt-equity characterization depends on the synthesis of more than a dozen factual and circumstantial elements. In real-world situations, with so many considerations in play, ambiguity is endemic. The threshold challenge for taxpayers, the IRS, and, ultimately, the courts is to determine the most appropriate characterization for a given financing, all things considered.

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Rosenbloom: The Branch Rule Of Subpart F

H. David Rosenbloom (Caplin & Drysdale; NYU), The Branch Rule: An Unhurried Read of the Statute, 175 Tax Notes Fed. 87 (Apr. 4, 2022):

In this article, Rosenbloom considers the language of the branch rule of subpart F and whether it should apply to both sales and manufacturing branches.

No one is likely to nominate the IRS for a writing award, but some of the Internal Revenue Code’s provisions are especially perplexing. One such provision is the branch rule of subpart F, found in section 954(d)(2):

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Blue J Predicts With 65%-94% Confidence Federal Circuit's Step Transaction Decision In GSS Holdings

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Stefanie Di Giandomenico (Senior Legal Research Associate, Blue J Legal), Timing Is Everything: The Step Transaction Doctrine in GSS Holdings, 174 Tax Notes Fed. 1849 (Mar. 28, 2021):

In this article, In this article, Alarie and Di Giandomenico examine the recent decision in GSS Holdings [v. United States, No. 19-728T (Fed. Cl. July 26, 2021),] and use machine learning to evaluate the effect of the selected analytical time frame on the outcome of this step transaction doctrine case. ...

In this article, we explore how tax experts can use machine learning tools to safely test and assess potential litigation strategies before deploying them at trial or on appeal. This can be especially useful for cases involving questions of law that turn on interrelated factors, such as the step transaction doctrine. By way of illustration, we put the recent GSS Holdings Court of Federal Claims decision under our machine learning microscope to see what we can see.

The case is being appealed by the taxpayer, GSS Holdings, to the Federal Circuit. The trial court reached its decision on cross-motions for summary judgment, favoring the government. It applied the step transaction doctrine to step together two transactions, finding them to constitute one asset sale for tax purposes. The court concentrated its analysis on a two-day period leading up to and including the sale, rejecting the taxpayer’s argument that the analysis should begin many years earlier, when the relevant agreements were first negotiated. When following the trial court’s characterization of the relevant time period, Blue J predicts a government win with 65 percent confidence.

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Judge Ketanji Brown Jackson And Tax Cases

Lee A. Sheppard, The Judicial Experience of Circuit Judge Ketanji Brown Jackson, 174 Tax Notes Fed. 1467 (Mar. 14, 2022):

[E]mployers know that elite law schools train their graduates to be appellate judges. They don’t train them to be trial lawyers, trial judges, business planners, wealth advisers, or any of the myriad other practical jobs that lawyers do. Jackson, who has been an appellate judge only since June 2021, has done several of these regular lawyer jobs. She was an appellate public defender in the federal court for three years and sat on the D.C. federal district court for seven years. She was also an assistant special counsel to the United States Sentencing Commission.

Is Jackson’s extensive practical experience relevant? Although the Supreme Court is not a fact-finder, trial experience could be valuable. Bad factual records do make bad law. Some important cases have come to the Court with poorly developed factual records, like the Vietnam-era black armbands in high school case (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)). Readers will recall that the Court was factually clueless in more than one important tax case (Arkansas Best v. Commissioner, 485 U.S. 212, 222 (1988), and Frank Lyon Co. v. United States, 435 U.S. 561 (1978)). If a Justice Jackson sat up and said, “Really, counsel, is that plausible?” during oral argument, that would not be a bad thing. ...

This article analyzes Jackson’s judicial record. Once again, as with the last four Supreme Court nominees, the real issue is administrative law. Can the government expand through administrative rulemaking? Or is enhancement of substantive rules the exclusive province of the legislature? That is highly pertinent to our readers, for whom administrative rulemaking is as or more important than statutory law. Many of the subjects Jackson considered as a federal district judge are controversial, like illegal immigration, but the legal issues are the same administrative procedure issues that our readers face when challenging tax regulations. ...

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Avi-Yonah: The U.S. Should Terminate Its Tax Treaty With Russia

Reuven Avi-Yonah (Michigan; Google Scholar), The United States Should Terminate Its Tax Treaty With Russia, 174 Tax Notes Fed. 1561 (Mar. 14, 2022):

I read with interest Marty Sullivan’s recent article arguing against terminating the U.S. tax treaty with Russia, and I respectfully disagree. (Martin A. Sullivan, “Should the United States Terminate Its Tax Treaty With Russia?” Tax Notes Federal, Mar. 7, 2022, p. 1327.) ...

Sullivan is skeptical of using tax for nontax purposes. I would argue that the corporate tax has always been used primarily as a regulatory device, and there is no difference between using it for foreign policy goals than using it for other non-revenue-raising goals like discouraging pollution or encouraging green investments.

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Wang: Where People Spend Their Child Tax Credit

Binnan Wang (Case Western), Where People Spend Their Child Tax Credit, 173 Tax Notes Fed. 1061 (Nov. 22, 2021):

In this report, Wang examines the different ways the automatic child tax credit is being used by various categories of taxpayers, and she explains why the payments have become a penalty for some middle-income
taxpayers.

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Blue J Predicts With 86%-95% Confidence That 10th Circuit Will Find That Taxpayer In Olsen Was Not Engaged In A Trade Or Business

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Christopher Yan (Senior Legal Research Associate, Blue J Legal), Using Machine Learning to Evaluate the Existence of a Trade or Business: Olsen, 174 Tax Notes Fed. 1231 (Feb. 28, 2021):

In this article, Alarie and Yan examine how machine learning can be used to assess the strength of the taxpayer’s position in the appeal of the Tax Court’s decision in Olsen [v. Commissioner, T.C. Memo. 2021-41 (Apr. 6, 2021)]. ...

When the Tax Court’s opinion was released, Blue J’s algorithm originally predicted with over 95 percent confidence that a court would rule that the taxpayer did not engage in a trade or business after considering all the factors. Blue J made this prediction based on the Tax Court’s finding that the taxpayer did not experience any profitable years since inception.

However, even if we adopt the most favorable version of the taxpayer’s appeal position to include tax benefits as part of profits and we assume that each of the tax years was profitable, Blue J’s algorithm predicts with 86 percent confidence that a court would still likely rule that the taxpayer did not engage in a trade or business.

Table 1 illustrates the effect of profitability on Blue J’s prediction on whether a court is likely to find that the activity constitutes a trade or business.

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A Financial Analysis Of Disguised Sales Of Partnership Interests

Bradley T. Borden (Brooklyn; Google Scholar), Douglas L. Longhofer (Central Missouri), Martin E. Connor Jr. (Debevoise & Plimpton) &  Nastassia Shcherbatsevich (Cravath, Swaine & Moore), A Financial Analysis of Disguised Sales of Partnership Interests, 172 Tax Notes Fed. 381 (July 19, 2021):

This article examines the issues that arise in identifying disguised sales of partnership interests, and it explores whether a financial analysis can help in distinguishing disguised sales from recapitalizations. The article examines law that considers both property and financial transactions that raise disguised-sale considerations. It shows that when property is part of a transaction existing case law and rulings provide helpful guidance for determining whether the transaction might be recast as a disguised sale of a partnership interest. The article also shows that, by contrast, existing authority proves mostly unhelpful in determining whether finance transactions are disguised sales of a partnership interest. The article presents a financial analysis that illustrates the difficulty of identifying disguised sales but also shows how a sale of an interest differs from a recapitalization. The analysis provides a general framework for considering the question of disguised sales of partnership interests, but it does not appear to provide a definitive model for analyzing all financing transactions that might be recast as disguised sales of interests in partnerships.

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Simkovic: Did New Deal Liberalism Steer Too Far To The Right?

Michael Simkovic (USC; Google Scholar), Did New Deal Liberalism Steer Too Far to the Right?, 174 Tax Notes Fed. 681 (Jan. 31, 2022) (reviewing A Half-Century With the Internal Revenue Code: The Memoirs of Stanley S. Surrey (Ajay K. Mehrotra (Northwestern; Google Scholar) & Lawrence Zelenak (Duke), eds. 2022):

Ajay K. Mehrotra, professor of law at the Northwestern Pritzker School of Law, and Lawrence Zelenak, the Pamela B. Gann Professor of Law at Duke Law School, have prepared a sparkling introduction to the recently discovered memoirs of Stanley S. Surrey, which they have also edited for publication.

Surrey was a tour de force in the legal academy and government. His career spanned the rise, peak, and fall of New Deal liberalism and the triumph of Reagan-Thatcherism that followed. Mehrotra and Zelenak deftly portray Surrey’s life against the backdrop of broader social forces and trends. Their sympathy for their subject shines through the essay, but it never veers into hagiography.

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Blue J: Using Machine Learning To Crack The Tax Code

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Xue Griffin (Senior Legal Research Associate, Blue J Legal), Using Machine Learning to Crack the Tax Code, 174 Tax Notes Fed. 661 (Jan. 31, 2022):

In this article, Alarie and Griffin review Blue J’s machine-learning predictions from the past year and reflect on the state of the technology of tax prediction.

Conclusion
Even though the strong forms of AI that approach human-level intelligence — AGI — are likely to be decades away, tax practitioners are increasingly able to leverage ML models that provide valuable insight into hidden patterns that will allow them to “crack the code.”

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Zelinsky: Simplifying Income Tax Reporting For Americans Abroad

Edward A. Zelinsky (Cardozo), Simplifying Income Tax Reporting for Americans Abroad, 174 Tax Notes Fed. 513 (Jan. 24, 2022):

In this article, Zelinsky examines the Tax Simplification for Americans Abroad Act (H.R. 6057) and argues that the tax compliance burden for U.S. citizens living abroad can and should be reduced.

Conclusion
Simplifying the tax reporting obligations of U.S. expatriates will not reconcile many opponents of citizenship-based taxation to that policy. Simpler reporting forms will not placate those who believe, on tax policy grounds, that it is wrong for the United States to tax any income earned abroad by expatriated citizens. Nor will that compliance simplification appease U.S. citizens whose foreign earned income exceeds the limits of the section 911 exclusion or who receive significant income that is subject to U.S. taxation because they pay little or no foreign taxes on this income. For these opponents of the United States’ worldwide taxation of all citizens’ incomes, the issue is not compliance costs but the net contribution they are required to make to the federal fisc.

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Burke: Transfers Of Zero-Basis Intangibles To A Partnership

Karen C. Burke (Florida), Transfers of Zero-Basis Intangibles to a Partnership, 174 Tax Notes Fed. 25 (Jan. 3, 2022):

In this report, Burke examines the problem of contributed zero-basis intangibles in light of the IRS’s inadvertent disclosure of a transaction structured by Bristol-Myers Squibb to shift billions of dollars of built-in gain to a related foreign partner.

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Hellerstein & Appleby: Does The Supreme Court’s Decision In Wayfair Apply Retroactively?

Walter Hellerstein (Georgia) & Andrew D. Appleby (Stetson; Google Scholar), Does the Supreme Court’s Decision in Wayfair Apply Retroactively?, 102 Tax Notes St.  715 (2021):

A recent decision of the Oregon Tax Court suggests that it may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical. Accordingly, after providing an overview of the case law governing retroactive application of Supreme Court state tax decisions repudiating preexisting constitutional doctrine, we examine the Oregon Tax Court’s opinion in Global Hookah Distributors Inc. v. Department of Revenue, which addressed the question whether Wayfair applied retroactively to the state’s tobacco products tax.

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Blue J Predicts: Worker Classification In The Gig Economy

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Kathrin Gardhouse (Legal Research Associate, Blue J Legal), Predicting Worker Classification in the Gig Economy, 173 Tax Notes Fed. 1733 (Dec. 20, 2021):

In this article, Alarie and Gardhouse examine the classification of workers in the gig economy and use machine-learning models to evaluate the legal factors that determine their categorization as employees or independent contractors for federal income tax purposes.

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The Whiteness Of Tax And How To Narrow The Race Gap

Amanda Athanasiou (Tax Notes), The Whiteness of Tax and How to Narrow the Race Gap:

Tax is probably not at the top of anyone’s list of the most diverse legal professions, nor should it be.

The 2020 U.S. census revealed a more racially diverse population than was measured a decade earlier, with Black or African American individuals accounting for 12.4 percent — 14.2 percent if you include those identifying as Black or African American in combination with another racial group. But just 1.4 percent of American Bar Association Section of Taxation members identified themselves as Black or African American, according to the ABA’s "2021 Goal III Report." That’s the lowest percentage of any of the ABA’s 22 sections.

“The contrast with other areas of the law — which have become more diverse, more progressive in different ways — is just stark,” Steven Dean of Brooklyn Law School told Tax Notes. ...

The race gap in tax matters — not just for the sake of the diversity of the tax bar or the quality of legal and public services but also because the law depends on it. "Who it is that is helping to craft the law is important, and I think tax lawyers of color are underrepresented in those areas,” Alice Abreu of Temple University’s Beasley School of Law told Tax Notes. Abreu and Richard Greenstein, also a Beasley law professor, queried in their 2018 Denver Law Review article “Rebranding Tax/Increasing Diversity” whether the Tax Cuts and Jobs Act might have favored a more diverse population if the tax bar weren't so white.

“There are more people who would make excellent tax lawyers than do it,” Dean said, singling out former Georgia House Minority Leader Stacey Abrams, a classmate of his at Yale Law School who started as a tax lawyer at Sutherland, Asbill & Brennan. ...

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