Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Infanti's Tax And Time: On The Use And Misuse Of Legal Imagination

This week David Elkins (Netanya, visiting NYU 2021-2022; Google Scholar) reviews a new paper by Anthony C. Infanti (Pittsburgh; Google Scholar), Tax and Time: On the Use and Misuse of Legal Imagination (NYU Press 2022). 

Time is one of the more perplexing phenomena of the universe. Astrophysicists distinguish between what they call “real time” (time as we experience it, as a series of continuous moments moving from the past to the future) and “imaginary time” (time as viewed from outside the time-space continuum, as a unitary whole with past, present, and future existing simultaneously). However, lest we misinterpret the terms, real time is not more real than imaginary time, and imaginary time is not more imaginary than real time. The terms “real” and “imaginary” simply refer to the real and imaginary axes in Cartesian complex number coordinates. In fact, in ordinary language, it is probably more accurate to describe imaginary time as “real” (an objective portrayal of the universe) and real time as “imaginary” (our psychological perception of the flow of time). One example of the complexities that arise in this field is the conundrum of the arrow of time: Why do we remember the past, but not the future? Why do we experience time as always flowing in one direction? The arrow of time has intrigued philosophers also. Why is the knowledge that I am to experience future pleasure preferable to the knowledge that I experienced past pleasure? Why is knowledge that I am to experience future pain more disconcerting than the knowledge than I experienced pain in the past?

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Zelinsky's The Proposed Regs On ESG Investing

This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by Edward A. Zelinsky (Cardozo), Comments to the Department of Labor Proposed ERISA Regulations, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” amending and restating 29 CFR §2550.404a-1.

The Employee Retirement Income Security Act of 1974 (ERISA) protects retirement plan participants and beneficiaries in a variety of ways. Under ERISA, pension plans must meet certain standards with respect to (i) participation, identifying who may participate, (ii) vesting, establishing how long those individuals must work to receive retirement funds, (iii) funding, determining the minimum amount of funds that must be set aside to pay future plan participants, (iv) management, requiring fund managers to adhere to a fiduciary standards, handling funds prudently and in the best interests of plan participants, and (v) disclosure, requiring plan managers to inform participants of their rights and the financial status of the plan. The Department of the Treasury and the Internal Revenue Service oversee plan participation, vesting, and funding. Participants in qualifying plans enjoy tax deduction and deferral benefits. They also retain the right to sue to recover earned benefits. The Department of Labor regulates fiduciary standards and requirements for reporting and disclosure of financial information.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Lederman’s Best Practices In Tax Rulings Transparency

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Leandra Lederman (Indiana-Maurer; Google Scholar), Best Practices In Tax Rulings Transparency.

Justice Brandeis once said that “sunlight is the best disinfectant.” Disclosure and transparency are often important for the legitimacy of government. In her article, Best Practices in Tax Rulings Transparency, Leandra Lederman not only creates a new typology for thinking about the costs of tax rulings in the dark, but also convincingly argues that many of the concerns against broader transparency of tax rulings is weak.

Tax rulings, as described by Lederman are rulings made by a tax authority or authorities to a specific taxpayer based on specific facts. For U.S. readers, the two most known in federal practice are Private Letter Rulings (PLRs), which speak to a specific taxpayer’s transaction, and Advanced Pricing Agreements (APAs), which fixes how the IRS will handle transfer pricing issues for a taxpayer over the course of about 3 to 5 years. In the U.S. context, PLRs are made public after a period with redactions of specifics regarding the taxpayer and their transactions, but APAs in the U.S. are never released widely.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Field’s Taxpayer Choices, Itemized Deductions, And The Federal And State Tax Systems

This week, Michelle Layser (Illinois; Google Scholar) reviews Heather M. Field (UC Hastings; Google Scholar), Taxpayer Choices, Itemized Deductions, and the Relationship Between the Federal & State Tax Systems, 13 Col. J.Tax L. __ (forthcoming 2021).

Some of most significant changes implemented under the Tax Cuts & Jobs Act of 2017 (the “TCJA”) were an increased standard deduction and the scaling back of several itemized deductions. Together, the anticipated impact of these changes was to dramatically reduce the number of taxpayers who report itemized deductions on their tax returns. Proponents touted these changes as a simplification measure. But how well did it work?

In a new article, Professor Heather Field provides empirical evidence to suggest that itemization rates fell considerably more in some states than others, and in some states, the TCJA may have even complicated tax filing more than it simplified it. Field demonstrates that these geographic disparities can be traced to states’ different approaches to conformity with federal law. Not only do these findings have important implications for how we understand the impact of the TCJA, but they also show how state law can interact with federal law in ways that undermine federal policy.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Taxing Buybacks By Hemel & Polsky

This week, Young Ran (Christine) Kim (Utah; Google Scholar) reviews a new work by Daniel J. Hemel (Chicago; Google Scholar) and Gregg D. Polsky (Georgia; Google Scholar), Taxing Buybacks, 38 Yale J. Reg. 246 (2021).

Before the COVID-19 pandemic, one of the hottest topics in the U.S. capital market was the rise in the volume of corporate share repurchases, also known as stock buybacks. In 2018, U.S. corporation stock buybacks topped $1 trillion, a record-breaking volume. In 2019, stock buybacks remained the single biggest source of demand for U.S. public equity. Despite the pandemic in 2020, stock buybacks continued to be in high demand. This trend has attracted attention from commentators and bipartisan politicians who have raised concerns about the surge. In recent days, most recent criticisms have focused on securities law issues; however, tax scholars have been considering the problem for decades. A monumental example is Marvin A. Chirelstein's seminal article, Optional Redemptions and Optional Dividends: Taxing the Repurchase of Common Shares, published in the Yale Law Journal in 1969.    

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

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

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

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Pratt's Learning To Live Without Form 1040

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Katherine Pratt (Loyola-L.A.; Google Scholar), Learning to Live Without Form 1040, 75 Tax Law. __ (2022).

From its inception, our federal revenue system has been based on income rather than consumption. Over the year, there have been numerous failed academic and practical proposals to switch to a consumption tax base, mainly for the latter’s promise for greater simplicity and administrability. Accordingly, we came to accept the fact that our system is so deeply ingrained in the concept of income that the transformation to a consumption tax base (such as the VAT and GST prominent in other countries) has become purely theoretical at this point.

Nonetheless, this Article is not another academic exercise. Pratt points out that the switch to consumption tax is extremely relevant today (and even more than ever) in light of the growing inequity gap and erosion of anti-poverty programs. With the diminished share of corporate tax revenues and multinational tax transfers, fulfilment of the growing need for alternative sources of revenues lies with Federal consumption taxes. 

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Hasen's Debt And Taxes

This week, David Elkins (Netanya, visiting NYU 2021-2022) reviews a new paper by David Hasen (Florida; Google Scholar), Debt and Taxes, 12 Columbia J. Tax L. 89 (2021).

As indicated by its whimsical title, David Hasen’s well-written paper considers the tax treatment of debt. Under the standard view, in exchange for the loan proceeds, the borrower commits to paying the lender interest and, eventually, repaying the loan proceeds. Because of the obligation to repay, the borrower does not report income on receipt of the loan proceeds. The idea is that income is accession to wealth, and wealth, in turn, is assets minus obligations. Increasing one’s assets (i.e., the cash received) and one’s liabilities by the same amount does not cause any change to one’s wealth. Similarly, for the lender, the cash is replaced by the borrower’s obligation. Thus, while the composition of the lender’s assets undergoes a transformation, the value of the assets remains the same and the lender cannot deduct the loan proceeds.

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Weekly SSRN Tax Article Review And Roundup: Sarkar Reviews Rationalizing The Arbitrary Foreign Tax Credit By Barry And Kleiman

This week, Shayak Sarkar (UC-Davis) reviews Jordan Barry (USC) & Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Rationalizing the Arbitrary Foreign Tax Credit, 74 Tax L. Rev. __ (2022).

In a globalized world, taxpayers often answer to multiple sovereigns. The United States, with its unique worldwide taxation system, addresses this reality with the century-old Foreign Tax Credit (FTC).  In Rationalizing the Arbitrary Foreign Tax Credit, 74 Tax L. Rev. ___ (2022), Jordan Barry and Ariel Jurow Kleiman provide a far-reaching but precise perspective on this credit’s many limitations.

They begin by taking the Supreme Court to task for its questionable algebra in the primary case on the foreign tax credit, PPL v. Commissioner, 569 U.S. 329 (2013). o There, the Justices characterized the United Kingdom’s Windfall Tax as a creditable “pure” income tax, despite a similar tax that the regulations deemed noncreditable.  From this tenuous distinction (given the possibility of infinite algebraic manipulation), Barry and Kleiman revisit and rebuild the foundations of the FTC.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Two New Papers By Kleiman And Widiss

This week, Sloan Speck (Colorado; Google Scholar) reviews new works by Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), Revolutionizing Redistribution: Tax Credits and the American Rescue Plan, 131 Yale L.J. F. __ (2021) and Deborah A. Widiss (Indiana; Google Scholar), Chosen Family, Care, and the Workplace, 131 Yale L.J. F. __ (2021).

Historically, the American legal system has struggled to adequately recognize and accommodate individuals’ lived experiences of family and care relationships. Over the last two decades, however, there has been a veritable revolution in legislative, regulatory, and judicial positions regarding “nontraditional” family structures. In many ways, public and private responses to the COVID-19 pandemic accelerated and intensified this shift. In separate essays, Ariel Kleiman and Deborah Widiss explore and evaluate pandemic-era government actions in taxation and workplace leave (respectively) that implicate families and care, situating these most recent changes within larger narratives of social provisioning and asking how these changes should influence future policy. Both authors are optimistic but cautionary: we collectively face a tremendous opportunity to advance and cement more inclusive understandings of family and care. How this opportunity unfolds may establish the American welfare state’s trajectory for years to come.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews The Trouble With Targeting Tax Shelters By Blank & Glogower

This week, Michelle Layser (Illinois; Google Scholar) reviews Joshua D. Blank (UC-Irvine; Google Scholar) and Ari D. Glogower (Ohio State; Google Scholar), The Trouble with Targeting Tax Shelters, 74 Admin. L. Rev. __ (2022).

The subject of tax avoidance hit the headlines a couple weeks ago when news organizations began to publish analyses of the Pandora Papers. The leaked documents contain confidential records related to offshore accounts held by “130 Forbes billionaires, as well as celebrities, fraudsters, drug dealers, royal family members and leaders of religious groups around the world” (ICIJ). Among other things, analyses of the Pandora Papers illustrate the challenges governments face when trying to detect and deter abusive tax avoidance strategies used by the ultra-wealthy. Though the problem itself is not new, Professors Joshua Blank and Ari Glogower argue that a recent Supreme Court case, CIC Services, LLC v. Internal Revenue Service, may have made it even harder for the IRS to target tax shelters.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Seto’s Modeling The Welfare Effects Of Advertising

This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Theodore P. Seto (Loyola-L.A.; Google Scholar), Modeling the Welfare Effects of Advertising: Preference-Shifting Deadweight Loss, 75 Tax L. Rev. ___ (2022).

Advertising is ubiquitous. Ads appear in almost every form of media from newspapers to television. Today, advertising is more powerful, with large tech companies using data collected on their users to create and sell targeted ads. The question for economics, and by extension tax policy, is do these advertisements influence our consumption patterns and how does that affect optimal tax theory. Ted Seto’s new piece, forthcoming in the Tax Law Review, Modeling the Welfare Effects of Advertising: Preference-Shifting Deadweight Loss reveals how the preference-shifting forces us to change our thinking about optimal tax theory.

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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).

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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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Has Cross-Border Arbitrage Met Its Match? By Mason & Saint-Amans

This week, Young Ran (Christine) Kim (Utah; Google Scholar) reviews a new work by Ruth Mason (Virginia; Google Scholar) and Pascal Saint-Amans (OECD), Has Cross-Border Arbitrage Met Its Match?, in Thinker, Teacher, Traveler: Reimagining International Tax. Essays in Honor of H. David Rosenbloom (Georg Kofler, Ruth Mason & Alexander Rust, eds., IBFD 2021), reprinted in the 41 Va. Tax Rev. 1 (2021).

Earlier this month, a group of international tax lawyers and policymakers got together to celebrate H. David Rosenbloom (Caplin & Drysdale, NYU)'s 80th birthday. The group spent two years secretly creating a Festschrift honoring Rosenbloom. The Festschrift is titled " Thinker, Teacher, Traveler: Reimagining International Tax. Essays in Honor of H. David Rosenbloom," edited by Georg Kofler (WU), Ruth Mason (Virginia), and Alexander Rust (WU) (IBFD 2021). Mason and Pascal Saint-Amans (OECD) contributed a chapter to the Festschrift titled, Has Cross-Border Arbitrage Met Its Match?, reprinted in the 41 Va. Tax Rev. 1 (2021). In their essay, Mason and Saint-Amans reviewed Rosenbloom’s criticisms of regulatory responses to international tax arbitrage, the academic response to those criticisms, and subsequent international cooperative efforts to curb international tax arbitrage. This review introduces their essay.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Glogower's Comparing Capital Income And Wealth Taxes

This week, David Elkins (Netanya, visiting NYU 2021-2022) reviews a new article by Ari Glogower (Ohio State; Google Scholar), Comparing Capital Income and Wealth Taxes, 48 Pepp. L. Rev. 875 (2021):

In this week’s article, Professor Glogower examines two proposals to reform the current tax system and improve progressivity. The first is a reformed capital income tax that would tax unrealized appreciation. The second is a wealth tax, under which individuals each year would pay a percentage of their net wealth. He evaluates these two proposals by considering their economic effects, administrability and avoidance opportunities, and constitutionality.

The author notes that if all capital produced a similar rate of return, then a reformed capital income tax and a wealth tax would be functionally equivalent: given a fixed return of x%, a y% income tax would be the same as an (x*y)% wealth tax. It is only because capital does not produce a fixed rate of return that the equivalence breaks down: relative to a reformed capital tax, a wealth tax would over-burden lower-yielding assets and would under-burden higher-yielding assets. Thus, in the real world, the normative question becomes: are we seeking to mitigate inequality of wealth or inequality of income? The former would best be served by a wealth tax, while the latter would best be served by a reformed income tax.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews The Inequity Of Informal Guidance By Blank & Osofsky

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Joshua Blank (UC-Irvine; Google Scholar) and Leigh Osofsky (North Carolina; Google Scholar), The Inequity of Informal Guidance, 75 Vand. L. Rev. __ (2022).

In The Inequity of Informal Guidance, Josh Blank and Leigh Osofsky recontextualize the IRS’s use of informal guidance as a social justice issue. Adding to the substantial literature on subregulatory guidance in tax law—as well as their own deeply researched work on simplexity, automated legal guidance, and the tax legislative process—Blank and Osofsky highlight the systemic inequities and access to justice issues created by what they describe as a “two-tiered system of [tax] law.” Through agents such as tax attorneys and other advisors, certain groups benefit from planning and structuring mediated by traditional bodies of formal authorities, which offer robust protections should any controversy arise. Others are left with informal guidance: IRS publications, FAQs, and online widgets that often provide a misleading gloss of the real stuff and always give limited support in audit or litigation. To remedy this systemic inequity, Blank and Osofsky propose a slate of reforms addressing the treatment of both formal and informal law.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Administering Taxes Democratically By Wallace And Blaylock

This week, Blaine Saito (Northeastern) reviews a new work by Clint Wallace (South Carolina; Google Scholar) & Jeff Blaylock (J.D. 2019, South Carolina), Administering Taxes Democratically?, 94 Temp. L. Rev. __ (2022).

Taxes are both the lifeblood of the state and a major power of the state. Thus, the issue of democratic values intersecting with taxation is one of cardinal import. Administering Taxes Democratically, a forthcoming piece in the Temple Law Review by Clinton Wallace and Jeff Blaylock, looks at a key aspect of that issue, the development of guidance from the Treasury and the IRS. The article adds an important contribution to the conversation regarding the unification of tax law and administrative law. In many ways, the piece is a bit of a cautionary tale of being careful what one wishes for.

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Property Tax Privateers By Bradley & Baskett

This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by Christopher G. Bradley (Kentucky) & Cameron Baskett (J.D. 2021, Kentucky), Property Tax Privateers, 40 Va. Tax Rev. __ (2021).

"Property tax privateers" are third-party investors that buy property tax liens in bulk, frequently at a steep discount, from local governments. They then foreclose on those liens, often pocketing not only the full value of the lien (plus interest, fees, and costs), but also most of the homeowners' equity in the home. While a homeowner's tax delinquency may initially have been no greater than $100, the impacts to the household include the expulsion of vulnerable individuals from their family home, loss of what is often the family's sole source of wealth, dislocation, and homelessness. In addition, these foreclosures undermine several of the key goals and uses of property taxes: fostering community, stability and support through particular amenities. At the same time, the bulk sales offer very little in the way of local benefit, since the government is likely to have received only a fraction of the value of the lien and foreclosure rarely spurs increased investment. The authors advocate for reforms to limit the foreclosure rights of third parties who purchase tax liens. Under their new rule, privateers would be permitted to foreclose on liens against a homeowner’s primary residence only when the homeowner sells the home or moves out of the home on a long-term basis.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Kaye's The Low-Income Housing Tax Credit And Opportunity Zones

This week, Michelle Layser (Illinois; Google Scholar) reviews Tracy Kaye (Seton Hall), Ogden Commons Case Study: A Comparative Look at the Low-Income Housing Tax Credit and Opportunity Zone Tax Incentive Programs, 48 Ford. Urb. L.J. __ (forthcoming 2021).

Many tax experts, policy watchdogs, and anti-poverty advocates doubt the Opportunity Zones tax incentive will benefit low-income communities (see here, here, and here for just a few examples). Nevertheless, proponents of the incentive love to highlight success stories, in which the tax preference has been used to subsidize pro-social investment in distressed communities. Stories like Ogden Commons, a mixed-use affordable housing development in the North Lawndale neighborhood of Chicago, which is being funded, in part, using Opportunity Zone capital. Even the law’s harshest critics are forced to acknowledge that such examples exist. But are they evidence that the Opportunity Zones law will have a positive impact on low-income communities, after all?

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Zelenak’s Taxes Of The Ultra Rich And Mark-To-Market Reforms (1924, 2021)

This week, Young Ran (Christine) Kim (Utah; Google Scholar) reviews a new work by Lawrence A. Zelenak (Duke), 1924, 2021: Taxes of the Ultrarich, and Mark-to-Market Reforms, 172 Tax Note Fed. 583 (2021).

Larry Zelenak is an amazing tax storyteller, not to mention a highly-respected tax scholar. He seems to have a treasure box full of fascinating tax stories. I enjoyed going to the annual Tax Movie Night event held every Tax Day at NYU School of Law, where Larry was always a special guest speaker. It was a lot of fun to watch classic television episodes featuring various tax matters in everyday life, mostly from the "Mad Men" era, and then listen to Larry's comments afterwards. Larry recently published another fascinating tax story, 1924, 2021: Taxes of the Ultrarich, and Mark-to-Market Reforms, 172 Tax Note Fed. 583 (2021) that covers the billionaires' tax story, ranging from contemporary billionaires, like Jeff Bezos, Elon Musk, Michael Bloomberg, and Warren Buffet, to the “billionaires” from the past century, such as Rockefeller, Ford, and J.P. Morgan. Embedded in the story, he presents an important lesson on how to reform the taxation of unrealized capital gains.

 

 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews The Charitable Tax Deduction And Civic Engagement By Hayashi & Hopkins

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Andrew T. Hayashi (Virginia; Google Scholar) & Justin Hopkins (Virginia; Google Scholar), The Charitable Tax Deduction and Civic Engagement.

It’s no wonder the federal income tax deduction of charitable contribution has been central theme in recent political debates. The tax expenditure to the U.S. government from the charitable contribution deduction in 2018 amounted to over $45 billion and projected to exceed $88 million in 2028. Recently, the CARES Act expended this tax benefit permitting taxpayers who take the standard deduction to deduct up to $300 for charitable contributions while increasing the maximum amount of deductible cash contributions for itemizers. Albeit its historical record as a social and economic policy by providing supplemental (sometimes primary) support for welfare and social services through wealth transfers from wealthy and their preferred charities to the poor, Presidents Obama, Trump, and Biden have all proposed limiting the charitable deduction and even abolishing it altogether. The current charitable deduction increases opportunities to influence political representativeness and appears to favor high-income taxpayers (who itemize their deductions) and their chosen charities while remaining unsuccessful in closing the inequity gap (not all 501(c)(3) organizations benefit lower-income households) and the decline of voluntary associations.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Monetary Finance By Galle And Listokin

This week, David Elkins (Netanya) reviews a new article by Brian Galle (Georgetown; Google Scholar) & Yair Listokin (Yale; Google Scholar), Monetary Finance (2021):

Governments need (or want) to spend money. Perhaps the most obvious and time-honored means to finance that spending is via taxation. However, when the government concerned is a sovereign entity with the power to print currency, the question arises as to why it should resort to taxation at all. Why not simply print (or otherwise create ex nihilo) the money that it needs? The traditional response is that printing money leads to inflation, which is itself a form of taxation. It effectively redistributes from those who are least able to protect themselves from rising prices (e.g., retirees living on fixed income or employees without sufficient bargaining power to demand cost-of-living wage adjustments) to those who are able to protect themselves from rising prices and perhaps even to benefit from it. Furthermore, high inflation carries with it severe economic and political risks (Europe’s experience with hyper-inflation in the twentieth century is one reason why the mandate of the European Central Bank emphasizes price stability above all other goals).

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Lawsky's Teaching Algorithms And Algorithms For Teaching

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Sarah Lawsky (Northwestern; Google Scholar), Teaching Algorithms and Algorithms for Teaching, 24 Fla. Tax Rev. ___ (2021).

In Teaching Algorithms and Algorithms for Teaching, Sarah Lawsky identifies and elaborates what she denotes as the “algorithm method” for teaching tax. A corollary or companion to the problem method, the algorithm method unpacks complex statutory language by “ask[ing] students to work through unambiguous problems that have right and wrong answers.” Although Lawsky’s terminology is novel and useful, she describes the algorithm method as fundamentally “unremarkable, uncontroversial, and common” in tax instruction. Her article carefully connects the algorithm method to in- and out-of-class learning in the context of “flipped” classrooms and her outstanding exercise-generating website, Lawsky’s Practice Problems. This context illustrates the importance of delineating and deploying the algorithm method in legal pedagogy.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Taxation And Law And Political Economy By Bearer-Friend, Glogower, Kleiman & Wallace

This week, Hayes Holderness (Richmond) reviews Jeremy Bearer-Friend (George Washington; Google Scholar), Ari Glogower (Ohio State; Google Scholar), Ariel Jurow Kleiman (Loyola-L.A.; Google Scholar), & Clinton G. Wallace (South Carolina; Google Scholar), Taxation and Law and Political Economy, 83 Ohio St. L.J. ___ (2022).

One bit of folk wisdom among tax professors is that many students interested in law careers addressing social inequities will fail to consider tax law as an area of practice in favor of something like criminal law. I suppose the idea is that tax law is just about numbers and math and making sure that rich people and corporations don’t pay taxes. With such a framing, one can understand the lack of appeal to this set of students. Of course, if these students are lured into a tax class, it seems they are often delightfully surprised at the role taxation can play in shaping social policy. So how did tax law earn its muted reputation, and can or should that reputation change?

Though their article is not about how to get more students to enroll in their classes, Jeremy Bearer-Friend, Ari Glogower, Ariel Jurow Kleiman, and Clint Wallace have answers to these questions. 

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Woodcock's Antimonopolism As A Symptom Of American Political Dysfunction

This week, Michelle Layser (Illinois; Google Scholar) reviews Ramsi A. Woodcock (Kentucky; Google Scholar), Antimonopolism as a Symptom of American Political Dysfunction.

One of the biggest news stories of the year has focused on antitrust cases and bills targeting tech giants Amazon, Apple, Facebook and Google. Outside the academy, liberal progressives increasingly point to monopoly power held by BigTech as a source of growing income and wealth inequality (see here, here, and here).  Newly appointed chair of the Federal Trade Commission and Columbia Law Professor Lina Khan made a splash in 2016 with her Yale student note, which made a legal case for breaking up Amazon, inspiring a “‘hipster antitrust’ movement among young scholars who want to expand existing antitrust law to better target issues like corporate concentration and income inequality” (Vox).

But is antitrust law really a promising tool for redistributing income and wealth? Professor Ramsi A.Woodcock doesn’t think so.

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews New Papers By Hackney And Peck

This week, Tracey Roberts (Cumberland; Google Scholar) reviews new works by Allison Peck (West Virginia) Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia, 124 W. Va. L. Rev. ___ (2021); and Philip Hackney (Pittsburgh), Dark Money Darker? IRS Shutters Collection of Donor Data, 25 Fla. Tax Rev. ___ (2021).

In Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia, Allison Peck recounts the early 20^th Century efforts of Morgantown, West Virginia lawyer, George C. Baker, to pave a pathway for the state to tax its coal, oil, and gas resources. Industrialists initially delayed legislative reform by persuading the legislature to employ a time-honored tactic: setting up a commission to study the matter. Imagine their surprise and chagrin when the commission proposed that the state, in stark need of revenues, issue licenses for extraction and tax the licenses based on volume of production. The commission described the tax as merely sufficient to offset the state’s costs from extraction activities: mine inspections (West Virginia’s safety laws were the nation’s weakest), miner’s hospitals (miners were frequently injured and died from mine collapse, explosions, and fires), the decline in value and harm to the land resulting from extraction activities, and deployment of state militia and national guard to put down civil unrest as miners sought to unionize and strike (a prescient consideration, given the scope of West Virginia’s mine wars from 1912-21). Despite this setback, the industrialists defeated the commission’s proposed bill in a special session of the legislature.

 

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews 'Slack' In The Data Age By Oei And Ring

This week, Young Ran (Christine) Kim (Utah; Google Scholar) reviews a new work by Diane Ring (Boston College; Google Scholar) and Shu-yi Oei (Boston College; Google Scholar), "Slack" in the Data Age, 73 Ala. Law Rev. ___  (2021).

Legal systems tolerate "informal" spaces where law is not enforced and where those who violate the law are not sanctioned. We, tax lawyers, are familiar with this situation. In their new article, "Slack" in the Data Age, forthcoming in the Alabama Law Review, Diane Ring (Boston College) and Shu-yi Oei (Boston College) refer to this phenomenon as "slack." The authors discuss how slack relates to the formal flexibility and leniency of legal systems, and how the influx of ubiquitous data and information affects slack. While they give examples of slack in other areas of law, such as criminal law, this review will focus on slack in tax law.

Slack arises when enforcers have scarce resources and must prioritize, as Leigh Osofsky (North Carolina) demonstrated in The Case for Categorial Nonenforcement. 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Scharff's Local Revenue When Federalism Fails

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Erin Scharff (Arizona State), Cities on Their Own: Local Revenue When Federalism Fails, 48 Fordham Urb. L.J. 919 (2021):

The COVID-19 pandemic has required states and local governments to spend more funds to apply frequent cleaning, retrofit public spaces, support local businesses, and address pandemic-related increased poverty rates, all the while local revenue collections meaningfully shrank. Though some assistance to local governments with substantial deficits was provided through the American Rescue Plan passed in March of 2021, it is more a bandage than a panacea to their fiscal health issues. The scope and magnitude of the Covid-19 global economic contraction has only one parallel in U.S. History—the Great Depression. Scharf does a great job here comparing the effects of the current pandemic recession to the Great Recession on localities, and how state and local governments then and today handled growing spending and contractions in their revenues. She demonstrates that during the Great Depression most local governments focused their spending reductions on education, health, and social services. Yet, Scharff argues that long-term and meaningful economic renewal in the current economic recession necessitates effective reform of local fiscal policy and taxing authority. She does a great job laying the ground to some of the means to achieve such goal.

 

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews The Psychology Of Taxing Capital Income By Liscow & Fox

This week, David Elkins (Netanya) reviews a new article by Zachary Liscow & Edward Fox, The Psychology of Taxing Capital Income: Evidence from a Survey Experiment on the Realization Rule (2021):

As a rule, unrealized gain is not recognized as income for tax purposes. It is only when the appreciated property is sold that the gain is subject to tax. Tax scholars agree that the only impediments to taxing unrealized income are valuation and liquidity: the market value of a particular asset may be difficult to determine and the taxpayer may not have the necessary cash. The sale of the property – and specifically the sale of the property in a cash transaction – removes these two obstacles: the tax administration does not need to engage in speculative valuation and the taxpayer presumably has the wherewithal to pay the tax. Nevertheless, the realization doctrine carries considerable cost in terms of both equity and efficiency. It is horizontally inequitable because taxpayers whose accession to wealth takes the form of unrealized gain bear a lower effective burden than similarly situated taxpayers whose income is taxed currently. It is vertically inequitable both because the wealthier segments of society own more assets and because they have a greater ability to defer the realization of the gain. It is economically inefficient because of the lock-in effect: taxpayers who would otherwise want to sell an appreciated may be unwilling to waive the advantage of deferral.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Mazur's Can Blockchain Revolutionize Tax Administration?

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Orly Mazur (SMU; Google Scholar), Can Blockchain Revolutionize Tax Administration?:

In Can Blockchain Revolutionize Tax Administration, Orly Mazur provides an excellent addition to the burgeoning academic commentary on blockchain technologies in tax administration. And Mazur is cautiously evangelical in her belief that blockchain offers real benefits compared to the current U.S. tax system. The stakes, for Mazur, are significant: there’s real promise that blockchain could bolster or unlock enforcement mechanisms that could help close the net tax gap. Mazur ably explores the potential benefits—and associated drawbacks—of deploying blockchain in the tax space.

Blockchain technology generally refers to data storage using a unified, secure, distributed ledger. Importantly, changes to the ledger do not rely on a trusted intermediary for approval. Instead, changes arise through an a priori consensus mechanism involving the various parties, known as nodes, that keep copies of the ledger. The term “blockchain” directly refers to a particular method for ensuring data integrity, in which a ledger is appended using time-stamped blocks of data that begin with a unique verification code (or hash) based on the prior block of data. 

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Monroe's Improvisation And Forgotten Taxpayers In Partnership Tax

This week, Hayes Holderness (Richmond) reviews Andrea Monroe (Temple), Making Tax Law Work: Improvisation and Forgotten Taxpayers in Partnership Tax, 55 Mich. J. L. Reform ___ (2021):

When I teach Partnership Taxation, I like to introduce the subject by telling my students that there are really only two principles behind Subchapter K: 1) do what you want, and 2) don’t screw the government. I explain that the course will be an exercise in reconciling those two principles, and it will probably be the most difficult exercise in tax law that they encounter in law school. Until reading Andy Monroe’s forthcoming article, I was certain that the difficulty of Partnership Taxation was merely the unfortunate side effect of a tax regime designed to respect taxpayer choices. Now I’m not so sure, and worse, I’ve certainly been complicit in promoting this narrative.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Work Hours And Income Tax Cuts By Simkovic And Allen

This week, Michelle Layser (Illinois; Google Scholar) reviews Michael Simkovic (USC; Google Scholar) and Eric J. Allen (UC-Riverside; Google Scholar), Work Hours & Income Tax Cuts: Evidence from Federal-State Tax Interactions, 25 Fla Tax Rev. __ (2021).

When the Biden Administration announced its plans to increase both capital gains tax rates and ordinary income tax rates on high-income earners, opponents predictably responded that doing so would reduce economic growth. This objection is supported, in part, by the familiar theory that taxpayers respond to increased taxes on labor by simply working less. Conversely, tax cuts are expected to increase labor effort since the after-tax returns are greater. But the reality is more complicated. As Professors Michael Simkovic and Eric J. Allen explain, “[t]he effect of an income tax cut on work hours can be difficult to predict because tax cuts often produce two opposite effects: a substitution effect, which encourages work, and an income or wealth effect which discourages work.”

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Tax Boycotts

This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by H. Scott Asay (Iowa; Google Scholar), Jeffrey L. Hoopes (North Carolina; Google Scholar), Jacob Thornock (BYU; Google Scholar), and Jaron H. Wilde (Iowa, Google Scholar), Tax Boycotts:

In Tax Boycotts, the authors evaluate the widespread assumption among tax scholars that the key risk deterring corporations from engaging in greater levels of tax planning is the loss of corporate reputation. The authors undertake a systematic set of studies to determine whether U.S. consumers actually respond to news about corporate tax avoidance with boycotts of corporate products and stock purchases. The authors survey a representative sample of U.S. consumers concerning their perceptions of and actions with respect to corporate tax planning and then examine weekly scanner-level data on consumer purchaser, daily data on retail stock purchase activity, and data for ongoing boycotts. The authors conclude that tax planning and tax avoidance are not particularly important drivers of past boycott activity in the U.S. They also conclude that boycotts also pose no threat to future tax avoidance activity.

 

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Shanske's Agglomeration and State Personal Income Taxes

This week, Young Ran (Christine) Kim (Utah; Google Scholar) reviews a new work by Darien Shanske (UC-Davis), Agglomeration and State Personal Income Taxes: Time to Apportion (With Critical Commentary on New Hampshire’s Complaint Against Massachusetts), 48 Fordham Urb. L.J. ___ (2021). 

Many people have been working from home since COVID-19 swept the country in early 2020. If the pre-pandemic workplace and the remote workplace are located in different states, many potential tax problems for employees (individuals) and employers (businesses) arise. To address individuals’ tax issues, the Supreme Court is considering granting certiorari in the New Hampshire v. Massachusetts case. Massachusetts would only tax nonresident employees' income before the pandemic if such employee physically worked in Massachusetts. On the other hand, if the employee worked remotely from a different state, their income was sourced in their residence state—e.g., New Hampshire—and thus, Massachusetts had not taxed such income. However, when the pandemic hit, those employees stopped commuting to Massachusetts. Massachusetts then announced a temporary emergency regulation to treat nonresident employees who commuted to Massachusetts but now work from home as Massachusetts source. In other words, nonresident remote workers' income is now subject to Massachusetts state income tax. As a residence state of those remote workers, New Hampshire has submitted a claim that Massachusetts’ emergency regulation violates the dormant Commerce Clause and the Due Process Clause.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Measuring And Valuing Wealth For Federal Wealth Tax Reform

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews David Gamage (Indiana; Google Scholar), Ari Glogower (Ohio State; Google Scholar) and Kitty Richards (Independent), How to Measure and Value Wealth for a Federal Wealth Tax Reform, Roosevelt Inst. Issue Brief (2021):   

One of the most debated topic in the last decade is wealth inequality and the unequal distribution of assets among individuals in the U.S.. Wealth distribution becomes even more skewed when race and ethnicity are involved with (not surprisingly) a staggering racial wealth gap.

Recent proposals to reduce the wealth gap (such as those proposed by Senators Warren and Sanders) encountered the hurdle that fails to succeed any tax reform—overcoming valuation issues.  Our current income tax system is cash realization–based and thus mostly takes a deferral-based approach to valuation of wealth accumulation, which makes valuation of wealth rather challenging. If we truly want to make a progress on narrowing the income inequality gap and tax income and wealth of the highest income taxpayers in our society, we have to find efficient ways to overcome assessment difficulties, namely how to measure and value taxpayers’ wealth. This report—published under the auspices of the Roosevelt Institute, a think tank of experts on the American economy—is a practical attempt by Gamage, Glogower, and Richards to do just that.  

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Lucas's The Pain of Paying Taxes

This week, David Elkins (Netanya) reviews a new article by Gary Lucas, Jr. (Texas A&M; Google Scholar), The Pain of Paying Taxes, 56 Richmond L. Rev. __ (2021) (forthcoming):

The financing of government spending (and in particular the financing of transfer payments) by taxation has been analogized in the literature to the carrying of water in a leaky bucket. In many cases, the amount received by the beneficiaries of the spending program will be less than the cost imposed upon the taxpayers. Under standard economic modeling, the sources of the leak include compliance costs, administrative costs, and the substitution effect (which occurs when taxpayers alter their behavior in order to avoid the tax or to minimize their tax liability). In a fascinating article, Professor Lucas argues that the leak may be larger than we thought. Leaving aside Oliver Wendell Holmes’ famous declaration that he does not mind paying taxes because taxes are the cost of a civilized society, people do not like to pay taxes. The psychological pain associated with paying taxes reduces social welfare and can also exaggerate the substitution effect.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Cauble's Questions The IRS Will Not Answer

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Emily Cauble (DePaul), Questions the IRS Will Not Answer, 97 Ind. L.J. ___ (2021).

In Questions the IRS Will Not Answer, Emily Cauble provides an important analysis and critique of the Internal Revenue Service’s “no-rule” areas—topics on which the IRS will not, or ordinarily will not, issue private letter rulings. Cauble focuses on fact-intensive issues that fall into this prohibited space. Her motivating examples involve the classification of gifts under the Duberstein standard, the boundary between nondeductible personal outlays and deductible medical expenses under § 213, and intent-oriented aspects of the related party antiabuse rule for like-kind exchanges under § 1031(f). Fundamentally, however, Cauble’s approach is normative: she searches for, then evaluates, potential rationales for administrative reticence in giving private guidance in situations where the facts are likely determinative.

Cauble presents—then largely rejects—eight reasons that might justify an administrative refusal to rule on fact-sensitive issues.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Saito's Tax Coordination

This week, Hayes Holderness (Richmond) reviews Blaine G. Saito (Northeastern), Tax Coordination, 38 Ga. St. U. L. Rev. ___ (2022):

The idea of tax expenditures—those provisions of the tax law not in line with the normative base—has intuitive appeal. Of course the tax law is imperfect, but if we pinpoint the offending provisions, we can approach a more perfect code. Now where did we put that normative baseline? Harsh and compelling critiques of the tax expenditure concept essentially accuse it of masking personal preferences regarding the desirability of tax provisions, yet the concept apparently cannot be so easily killed off.

Though I may be stretching the article too far in this claim, Blaine Saito’s forthcoming article, Tax Coordination, offers an alternative way to think about tax expenditures. They are those provisions of the tax law with effects on social policy. Further, they are those provisions of the tax law that could benefit from interagency coordination. The thrust of Saito’s argument is that the Internal Revenue Service and Treasury should be encouraged to play nicer with others, but in this argument lies a lesson about tax expenditures: they are those provisions of the tax law that the tax authorities are not well-suited to administer alone.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Joondeph's The States’ Multiple Taxation Of Personal Income

This week, Michelle Layser (Illinois; Google Scholar) reviews Bradley W. Joondeph (Santa Clara), The States’ Multiple Taxation of Personal Income, 71 Case Western Res. Law. Rev. 121 (2020).

The COVID-19 pandemic has drawn renewed attention to the possibility that state tax regimes may result in multiple taxation of personal income. In a new article, Bradley Joondeph explores the constitutional significance of multiple taxation of personal income, and he concludes that multiple taxation isn’t actually that problematic. To prove his point, Joondeph begins with an overview of contexts in which courts have blessed state tax laws that result in multiple taxation. Joondeph describes two major sources of multiple taxation: conflicting apportionment methods and conflicting jurisdictional bases.

When taxing nonresidents, states may only tax income sourced to their state, but it is not always obvious where income should be sourced. The problem is especially pronounced in the context of multi-state corporations, and states have adopted different apportionment formulas for sourcing corporations’ income. These formulas often conflict in ways that result in multiple taxation, but the Supreme Court has long held that this is fine.

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Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Sarkar's Capital Controls As Migrant Controls

This week, Ariel Jurow Kleiman (San Diego; moving to Loyola-L.A.; Google Scholar) reviews a new article by Shayak Sarkar (UC-Davis), Capital Controls as Migrant Controls, 109 Cal. L. Rev. ___ (2020).

Governments regulate migration in myriad ways. Via border policies, economic (dis)incentives, and inclusionary or exclusionary social and legal systems, governments seek to draw or repel migration into a domestic economy. As Shayak Sarkar argues in his most recent article, Capital Controls as Migrant Controls, they can also do so by regulating migrants’ financial activities. Building on his past scholarship on migrants’ financial habits and the legal infrastructure governing them (e.g., here and here), Sarkar describes and analyzes legal systems that constrain migrants’ financial activities in the U.S. He argues that this financial regulation not only controls migrants’ capital, but that it controls migrants as well.

Sarkar focuses on three examples of what he calls “capital controls”—although he notes that his use of the term is somewhat broader than its traditional meaning of restrictions on foreign capital inflows and outflows. He first discusses taxation of migrants’ remittances back to home countries (more on this momentarily). Second, he explores rules that restrict undocumented workers’ access to Social Security benefits and that require eligible noncitizens to leave the U.S. in order to collect payments. Third, he describes consumer-banking identification requirements, which often work to exclude undocumented workers from U.S. banking services. The article’s scope is broad, canvassing laws on immigration, taxation, financial regulation, and the social safety net. To make the current discussion more tractable, I will focus here on his analysis of remittance taxation.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews The IRS's Decisive Transfer Pricing Victory In Coca Cola By Avi-Yonah & Mazzoni

This week, Young Ran (Christine) Kim (Utah; Google Scholar) reviews a new work by Reuven Avi-Yonah (Michigan; Google Scholar) & Gianluca Mazzoni (Michigan SJD), Coca Cola: A Decisive IRS Transfer Pricing Victory, at Last, 169 Tax Notes Fed. 1739 (2020).

Coca-Cola has offshore manufacturing facilities that produce beverage concentrate in low tax countries, such as Brazil, Ireland, and Egypt. Because the beverage concentrate is a Coca-Cola product, though it is not a final product, the US Parent co. licenses its intangibles, such as trademarks and secret formulas, and the manufacturing facilities pay royalties and dividends. But the role of offshore manufacturing facilities stops there. The final products are made by third party entities, called “Bottlers,” and the marketing activities of the Coca-Cola brand and the final products are conducted by another foreign subsidiary (ServCos). Given such a limited role of offshore manufacturing facilities, called "Supply Points," what portion of profits under the transfer pricing rules should be allocated to those Supply Points compared to the US Parent co.? Probably not much.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Executive Compensation After 162(m)'s Repeal By Galle, Lund & Polsky

This week, Mirit Eyal-Cohen (Alabama) reviews Brian D. Galle (Georgetown), Andrew Lund (Villanova) & Gregg D. Polsky (Georgia), Does Tax Matter? Evidence on Executive Compensation after 162(M)'s Repeal, 26 Stan. J. L., Bus. & Fin. ___ (2020). 

Changes in legislation provide interesting opportunities for natural experiments. Tax law is one of those fields where legislative changes occur on an annual basis and students quickly become aware of their inability to save money on used statutory supplements. This paper explores said opportunity to observe the effect of variations in tax law on the much-contested topic of senior executive compensation.

Since 1993, the deductibility of senior management salaries in public companies has been limited under section 162(m) for payments above $1 million. Section 162(m) was enacted with rising scrutiny on executive pay during the 1990s. At the same time, then section 162(m) contained an exception that allowed deductibility above the $1 million threshold to the extent the compensation was performance-based. This exception encouraged firms, once the $1 million cap was reached, to pay compensation based on performance via shares, stock options, and bonuses. This performance sensitivity in executive pay was viewed as shareholders-friendly as it was based on objective performance goals, approved by an independent compensation committee of the board, and encouraged managers to take more risk to achieve better financial outcomes. 

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Ozai's Inter-Nation Equity Revisited

This week, David Elkins (Netanya) reviews a new article by Ivan Ozai (McGill; Google Scholar), Inter-Nation Equity Revisited, 12 Colum. J. Tax L. 58 (2020):

In 1963, Peggy Brewer Richman introduced the concept of inter-nation equity as a cornerstone for normative analysis of international taxation. In 1972, she (now Peggy Musgrave) and her husband Richard Musgrave fleshed out the idea. Their argument was that the international tax base should be allocated in such a way as to recognize the entitlement of countries to tax the income arising in their territories and to allow for some degree of international redistribution.

Since that time, the literature has transformed the term “inter-nation equity” into a catch-all term devoid of any substantive meaning. It is often used simply to denote the vague concept of fairness. Commentators have employed it in ways that denote different and sometimes even contradictory conceptions of the idea. In this week’s article, Ivan Ozai examines the original meaning of the term as envisioned by the Musgraves and proposes a number of measures that might be adopted to promote those ideas.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Repetti's Equity And Efficiency In A Progressive Income Tax

This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by James R. Repetti (Boston College; Google Scholar), The Appropriate Roles for Equity and Efficiency in a Progressive Individual Income Tax, 23 Fla. Tax Rev. 522 (2020).

In The Appropriate Roles for Equity and Efficiency in a Progressive Income Tax, James Repetti offers a magisterial reappraisal of the relationship between equity and efficiency in U.S. tax policy. Repetti connects the decline in statutory income tax rates since the 1950s to a rising “focus on efficiency” at the expense of distributional concerns. For Repetti, this shift occurred, in part, because policymakers felt that efficiency offered “certainty” and “quantifiable” gains, while equity considerations seemed “intangible and unmeasurable.” These intuitions are illusory, however, as Repetti demonstrates through a comprehensive review of empirical literature in economics and other social sciences, including connections to Repetti’s prior work on taxation and democracy. Repetti joins other contemporary voices in advocating for a revival of traditional equity norms in policy debates—and perhaps even for a new preeminence of equality-oriented equity in the near term.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Pareja's The Role Of Congressional Procedure In Severability Doctrine

This week, Hayes Holderness (Richmond) reviews Mary Leto Pareja (New Mexico), California v. Texas: The Role of Congressional Procedure in Severability Doctrine, 46 Seton Hall Leg. J. (2021).

The Affordable Care Act and its controversial individual mandate are back in the headlines again as the Supreme Court considers the effect of reducing the tax for not maintaining health insurance to a zero rate. Surely, no reader of this blog will have forgotten Chief Justice Roberts’ weaving opinion in the 2012 NFIB case. Applying a “functional” approach, the opinion explained that the ACA’s “penalty” for not having health insurance was properly characterized as a “tax” for constitutional purposes. This interpretation ensured the constitutionality of the provision under Congress’ tax power, as it would not have been constitutional under Congress’ authority to regulate interstate commerce.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Lederman's Valuation As A Challenge For Tax Administration

This week, Michelle Layser (Illinois) reviews Leandra Lederman (Indiana), Valuation as a Challenge for Tax Administration, 96 Notre Dame L. Rev. __ (2021).

Property valuation lies at the center of many federal, state, and local tax policy debates. At the federal level, property valuation features prominently in problems related to gift and estate taxes, charitable contribution deductions, conservation easements, transfer pricing, and proposed wealth taxation. At the state and local levels, valuation problems arise most frequently in the context of property taxation. The goal of property valuation, of course, is to determine how an asset would be priced in an arms-length sale. In a forthcoming essay, Leandra Lederman argues that to achieve this goal, the tax law must overcome challenges presented by (i) opposing incentives that taxpayers have from the tax agency, and (ii) accurate measurement.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Holderness' Tax Relief for Commuters

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Hayes Holderness (Richmond), Changing Lanes: Tax Relief for Commuters, 40 Va. Tax Rev. ___ (2021).

Commuting has mixed motives: one must travel to get to work (business motive), but the extent and burden of the travel is the result of the personal choice about where to live (personal motive). However, there is no middle ground under the tax law; an expense is classified as either personal or business. Under current law, it is well established that commuting expenses are personal, and thus, nondeductible expenses under the tax law (e.g., Comm'r v. Flowers, 326 U.S. 465 (1946)). However, in the wake of COVID-19, working from home has become the new normal. Many people who used to commute to work no longer have the same amount of expenditure for commuting, such as gas and metro passes. What are the normative implications of such changed behavior? Hayes Holderness offers his views in his recent essay, Changing Lanes: Tax Relief for Commuters (forthcoming in Va. Tax Rev.).

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Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Hayashi's Dynamic Property Taxes And Racial Gentrification

This week, Ariel Jurow Kleiman (San Diego) reviews a new work by Andrew T. Hayashi (UVA), Dynamic Property Taxes and Racial Gentrification (2020).

Four decades after California’s Prop 13 and the Tax Revolt it instigated, we are still unraveling the downstream consequences of property tax limits. Andrew Hayashi explores yet another unanticipated, if not surprising, consequence of property tax assessment limits in the context of gentrification. Combining theoretical reasoning with empirical data from Maryland, his approach is thoughtful and nuanced, reflecting the multilayered complexity underlying the economic and social processes at play.

The crux of his reasoning is the following. Property taxes are based on a property’s assessed value, which often differs from its market value. A relatively lower assessed value means a lower “effective tax rate” (ETR), since the ETR is measured against market value. Tax limits play an important role by limiting the government’s ability to assess properties at their market value, either imposing a maximum increase percentage or requiring that increases be phased-in over time. Regardless of the form, these limits cause lower ETRs for properties that are increasing in value compared to properties with stable or declining values. The more rapid the appreciation, the more pronounced the ETR gap.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Tax Benefits, Higher Education and Race By Crawford & Gerzog

This week, Mirit Eyal-Cohen (Alabama) reviews Bridget J. Crawford (Pace) and Wendy C. Gerzog (Baltimore), Tax Benefits, Higher Education and Race: A Gift Tax Proposal for Direct Tuition Payments (Dec. 2020):

Amid recent nationwide protests and public condemnation of systemic racism, Americans are divided on whether this focus on the race and inequality gap will actually lead to major policy change. This product of collaboration between renowned tax crit Bridget Crawford and gift and estate tax expert Wendy Gerzog yields not only an admirable scholarly inquiry into the correlation between tax, race, and higher education, but also a practical proposal for policy reform to reduce race-based economic inequality. Using the case study of gift tax exemption for direct tuition payments, the Authors illustrate the ways tax rules can aggravate the racial wealth gap and put together a primer to fix the advantage most affluent taxpayers in the U.S. receive through educational tax benefits.  

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Tax Policy And Pharmaceutical Innovation By Eyal-Cohen & Rutschman

This week, David Elkins (Netanya) reviews a recently posted work by Mirit Eyal-Cohen (Alabama) & Ana Santos Rutschman (St. Louis), Tax Policy and Pharmaceutical Innovation (2020):

With so much of the world’s attention this year focused on the COVID-19 pandemic, it is little wonder that tax scholars too have waded into the breach. A quick search on SSRN turns up no less than 146 articles containing the key words “COVID” and “tax.” However, most of these articles are concerned either with the tax implications of the current pandemic or with what the government should do within the field of taxation in light of the economic havoc created by the virus and by the shutdowns and other measures instituted in an attempt to keep it at bay. This week’s article, co-authored by a tax law scholar and a public health law scholar, takes a step back and asks how the tax system can help prevent the next pandemic.

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