Weekly SSRN Tax Article Review And Roundup: Layser Reviews Galle's The Agency Costs Of Forever Philanthropy

This week, Michelle Layser (Illinois) reviews Brian Galle (Georgetown), The Quick (Spending) and the Dead: The Agency Costs of Forever Philanthropy.

Philanthropists have many options for where to donate, but donor advised funds are a favorite among the ultra-wealthy. These close cousins to private foundations are accounts held through grant-making entities called commercial donor advised fund sponsoring organizations, or “DSOs.” Like private foundations, DSOs are subject to more restrictions than public charities. But unlike private foundations, those restrictions do not include a payout requirement.

As a result, DSOs offer a unique opportunity for donors to amass social influence through contributions that are never actually allocated to grants. Read that again: it is possible that contributions made to a DSO may never be used to fund real charity. In fact, IRS data suggests that roughly a fifth of DSOs averaged a payout rate of zero during the period for which information was available. But do low payout rates like these always reflect donor preferences? In a new essay, Professor Brian Galle offers compelling empirical evidence that the answer is no. At least part of the problem, according to Galle, can be attributed to agency costs that arise after a donor dies.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Rethinking Tax For The Digital Economy After COVID-19 By Magalhães & Christians

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Tarcísio Diniz Magalhães (McGill) & Allison Christians (McGill), Rethinking Tax for the Digital Economy After COVID-19 (June 2020).

The coronavirus recession has brought many challenges, including economic and fiscal crisis. Still, there are winners during this difficult time. As the COVID-19 pandemic hit the United States in full scale leading to a nationwide lockdown starting in March, stock prices plummeted sharply for all but a handful of companies. Compare the year-to-date chart of the S&P 500 with that of Zoom, Netflix, and Amazon—companies that are thriving despite the pandemic. The exceptional performance of these companies is seemingly a “windfall” arising from the extreme restrictive measures governments had to impose on other sectors of the economy. As one possible solution for the fiscal crisis, prominent scholars, such as Reuven Avi-Yonah, Emmanuel Saez and Gabriel Zucman, as well as Melani Cammett and Evan Lieberman, have proposed to revive excess profits taxes. In Rethinking Tax for the Digital Economy After COVID-19, co-authors Tarcísio Diniz Magalhães and Allison Christians extend the excess profits tax proposal to the international domain and argue that the world needs to adopt a "Global Excess Profits Tax” (GEP Tax). Magalhães and Christians' paper was presented yesterday at the Indiana/Leeds Summer Tax Workshop Series (the Workshop), hosted by Leandra Lederman (Indiana – Maurer) and Leopoldo Parada (Leeds).

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Kleiman Reviews Hasen's Section 338 And The Step Transaction Doctrine

This week, Ariel Jurow Kleiman (San Diego) reviews a new work by David Hasen (Florida), Section 338 and the Step Transaction Doctrine, 73 Tax Law. ___  (2020).

David Hasen’s recent article on Code § 338 – which governs taxable acquisitions – displays the kind of dizzyingly intricate logical reasoning that attracts many curious law students to tax law. Marshalling legislative history, Congressional intent, and administrative rulings, Hasen makes a compelling case for how § 338 should be applied, and also shows that current regulations under § 338(h)(10) exceed the statute’s boundaries. In doing so, the article offers the sort of elegant doctrinal analysis that lawyers and law students dream of, but rarely get to craft in practice.

Because the article discusses Code § 338, it must start with the Kimball-Diamond (K-D) case, which Hasen dutifully recounts. To refresh the reader’s memory, in K-D the taxpayer bought all the stock of Whaley and then liquidated the resulting subsidiary under a predetermined plan. Because K-D always intended to hold Whaley’s assets directly, the court applied the step-transaction doctrine to collapse the two steps together into one asset purchase. As a result, K-D took the lower cost basis in the assets.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews COVID-19 And The American Safety Net

This week, Mirit Eyal-Cohen (Alabama) reviews Andrew Hammond (Florida), Ariel Jurow Kleiman (San Diego) & Gabriel Scheffler (Miami), How the COVID-19 Pandemic Has and Should Reshape the American Safety Net (2020):

Amidst the online pandemic and the strain it is putting on the ability of Americans to meet basic needs, and our government’s capacity to assist them, this important and timely Essay aims to accomplish four goals:  a) identifying the ways in which the pandemic feeds on and exacerbates both racial and economic inequality in America, b) analyzing the government response, c) considering which changes should outlast the current crisis, and d) how government should design social welfare programs to better meet the needs of all Americans in the coming years.  

The authors begin by highlighting the two upshots of the pandemic, that is the epidemiological and the economic crises and their effects on low-income households and communities of color. The latter are at higher risk of contracting COVID-19 and of enduring worse health consequences because low-pay individuals are more likely to live in overcrowded housing conditions, to utilize public transportation, to work in occupations that require close-contact interactions, to be uninsured with limited access to health services, and to suffer from preexisting conditions like diabetes and COPD that puts them at higher risk of COVID-19 complications. Although data on racial disparities in this pandemic is limited, existing studies supports similar premises.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Dagan's Re-Imagining Tax Justice In A Globalized World

This week, David Elkins (Netanya) reviews a recently posted work by Tsilly Dagan (Oxford, Bar-Ilan), Re-imagining Tax Justice in a Globalized World (2020):

In recent years, international taxation has moved to front and center stage. Once considered one of the more esoteric aspects of taxation, of interest to a few specialists and their clients, the field of international tax has drawn the attention of academics, politicians, the popular press, and international organizations. However, more often than not, those engaged in the discourse rely upon unexamined postulates and rehashed mantras that do little either to identify or to solve the serious challenges of taxation in a globalized world.

Tsilly Dagan is one of the rare breed of scholars who refuses to accept the conventional wisdom of international taxation and prefers to subject some of the field’s most well-entrenched principles to undogmatic scrutiny. In her current paper, she considers some of the challenges faced by countries in designing their tax policy, given the fact that taxpayers are no longer a captive audience over whom the sovereign state has virtually unlimited powers of coercion, but can freely choose where to reside and thus to which country’s tax regime to subject themselves.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Gillis's Carbon Tax Shifts And Revenue-Neutrality

This week, Sloan Speck (Colorado) reviews a new work by Rory Gillis (Toronto), Carbon Tax Shifts and the Revenue-Neutrality Dilemma, 23 Fla. Tax Rev. 293 (2019).

In Carbon Tax Shifts and the Revenue-Neutrality Dilemma, Rory Gillis deconstructs the concept of revenue neutrality as applied to Pigouvian carbon taxes. These carbon taxes are, of course, price instruments, and their behavioral effects—the raison d’être of the taxing scheme—generally don’t depend on the specific use of any funds generated. But, as Gillis notes, the political viability of these carbon taxes often hinges on (typically vague) promises of “revenue neutrality,” which means (somewhat naïvely) that every dollar raised by a carbon tax will be offset by one dollar of tax cuts elsewhere. Gillis challenges this “standard definition” as “conceptually unclear,” then distinguishes two competing understandings of revenue neutrality.

In Gillis’s terms, “backwards-looking” revenue neutrality adheres to an enactment-year revenue baseline and effectively straightjackets future revenue increases. By contrast, “sideways-looking” revenue neutrality looks to a hypothetical—and frequently unknowable—current-year baseline calculated as if the carbon tax had never been promulgated. 

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews New Technologies and the Evolution of Tax Compliance

This week, Hayes Holderness (Richmond) reviews James Alm (Tulane), Joyce Beebe (Rice), Michael S. Kirsch (Notre Dame), Omri Y. Marian (UC-Irvine) & Jay Soled (Rutgers), New Technologies and the Evolution of Tax Compliance, 39 Va. Tax Rev 287 (2020):

Ask almost any waiter and they will say that cash tips are best. “Why?,” a first time diner might ask. The waiter probably will not respond, “information,” but information is likely the root of the answer—or rather, control of information. Yes, there is some convenience to being paid immediately with cash. However, being fairly confident that diners will not tell the restaurant or the Internal Revenue Service how much they tipped, waiters control that information and can report it as they see fit. And when one focuses on waiters as taxpayers, their control over that information becomes problematic because that control enables the waiters to engage in tax evasion.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Ryznar's Extending The Charitable Deduction Beyond The COVID-19 Pandemic

This week, Michelle Layser (Illinois) reviews Margaret Ryznar (Indiana-Indianapolis), Extending the Charitable Deduction Beyond the COVID-19 Pandemic, 167 Tax Notes Fed. 463 (Apr. 20, 2020).

The Coronavirus Aid, Relief, and Economic Security (CARES) Act made two changes to the charitable contributions deduction: it increased the cap on deductible contributions for itemizers, and it created a new above-the-line deduction for charitable donations up to $300. While the first of these is limited to the 2020 tax year, the latter change is permanent and applicable to taxable years beginning in 2020. Professor Margaret Ryznar has argued that the new above-the-line deduction is good tax policy and supports its extension beyond the current pandemic.

In her brief essay, Ryznar comments on the value of the above-the-line charitable contribution deduction in two contexts. First, she considers the value of the deduction as a policy intervention during the COVID-19 pandemic. Ryznar notes that charities “seeking donations to help during the coronavirus pandemic range from procuring food for school children to locating equipment for hospitals” and argues that such charitable activities are “important supplements to the government response to the pandemic.”

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Zelinsky's Coronavirus, Telecommuting, And The 'Employer Convenience' Rule

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Edward A. Zelinsky (Cardozo), Coronavirus, Telecommuting, And the 'Employer Convenience' Rule 95 State Tax Notes 1101 (Mar. 30, 2020):

I hope everyone who reads this review stays well and healthy. Many non-essential workers have been working from home as nearly all states have issued stay-at-home orders and closed businesses in an effort to stem the tide of the virus. This raises a new question for out-of-state commuters: which state can tax the income that cross-border workers have earned at home under the COVID-19 situation? I personally have been curious about this issue because I taught two classes, Federal Income Tax class and Taxation of Business Entities, remotely from another state since spring break of this semester. Edward Zelinsky's short article, Coronavirus, Telecommuting, And the 'Employer Convenience' Rule, brings an interesting perspective to this question. He criticizes New York's policy of taxing the income earned by out-of-state telecommuters, arguing that it was bad policy in good times and even worse policy in times like today.

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Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Roxan's Is VAT Also a Corporate Tax?

This week, Ariel Jurow Kleiman (San Diego) reviews a new work by Ian Roxan (LSE), Is VAT Also a Corporate Tax? Untangling Tax Burdens and Benefits for Companies, LSE Legal Studies Working Paper 2/2020.

Simple taxes are often spoiled by the complexities of tax incidence. We think we’re taxing consumers, and somehow businesses bear the cost. We think we’re taxing capital owners, and somehow workers bear the cost. It’s as dizzying as Three-card Monte.

Ian Roxan bravely enters the tax-incidence fray with his recent article on the value added tax (VAT). I must admit up front that the article delved into details of European law that are beyond my ken. I forged onward nonetheless, armed with moxie and the assumption that the general principles underlying American and European tax law are roughly the same. I maintain this assumption of shared legal principles despite the vast cultural gulf between Americans and Europeans. See, e.g., the metric system, mayonnaise on French fries, and castles.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews How Not To Give People Money During a Pandemic

This week, Mirit Eyal-Cohen (Alabama) reviews Pamela Foohey (Indiana-Bloomington), Dalié Jiménez (UC-Irvine), and Christopher K. Odinet (Oklahoma), CARES Act Gimmicks: How Not To Give People Money During a Pandemic And What To Do Instead, 2020 U. Ill. L. Rev. Online 81 (2020):

This timely essay scrutinizes the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act in its aim to deliver economic relief. The main aspects of the CARES act provide individuals and families direct cash payments (“recovery rebates”), unemployment benefits, paid sick leave, foreclosure and eviction moratorium, and student loan suspension. The authors focus their attention on the first two.

The CARES act provides every household with direct payments of $1,200 per adult and $500 for every child under the age of 16. These amounts phase out based on AGI figures from previously filed tax returns by $5 for every $100 of income over an applicable threshold. The act also provides additional unemployment benefits of $600 per week to assist families during the crisis without making substantial changes in their spending and consumption. While both benefits do not cover all lost pay (past years’ national average weekly benefit was $387 and varied by state), they relax the pressure of job loss and allow individuals to continue to purchase food and supplies and pay for utilities while looking for new employment. They help maintain consumption and the nation’s economic activity. The CARES act also extends the duration of unemployment insurance and lowers the standards on eligibility requirements such as including individuals with insufficient work history, independent contractors, and gig economy workers.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Cauble's Time For A Tax Return Filing Fee

This week, David Elkins (Netanya, visiting Cornell spring 2020) reviews a recently posted work by Emily Cauble (DePaul), Time for a Tax Return Filing Fee, 57 Harv. J. on Legis. ___ (2020):

Not all tax returns are created equal. They vary with regard to their complexity and, consequently, with regard to the amount of time that the IRS needs to devote to them on audit. In this week’s article, Professor Emily Cauble proposes imposing upon filers a fee that would reflect the complexity of the transactions reported. She argues that such a fee would make the system fairer, would raise revenue to cover the cost of auditing the return, and would improve efficiency by encouraging taxpayers to take into account the cost imposed on the tax administration by their complex transactions. Her proposal includes a carve-out for difficult-to-audit items, such as the EITC, that are disproportionately claimed by lower-income individual.

The proposal is intriguing and I freely admit that despite having gone over it several times, I am little closer to forming a definitive position. In this review, I will take the liberty of expressing some of my reservations. I will state at the outset that they are nothing other than starting points for a discussion about it.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Hayashi's Countercyclical Property Taxes

This week, Sloan Speck (Colorado) reviews a new work by Andrew T. Hayashi (Virginia), Countercyclical Property Taxes, Va. L. & Econ. Res. Paper No. 2020-04.

In Countercyclical Property Taxes, Andrew Hayashi argues that residential real property taxes have important—and counterintuitive—macroeconomic implications during recessions and subsequent recoveries. Although policymakers often tout property taxes as stable revenue sources when the economy stalls, Hayashi lucidly outlines how these tax instruments amplify both household risk and community risk by pressuring homeowners’ discretionary spending. As Hayashi highlights, the design features of property taxes that generate revenue stability are the very same elements that shift risk from government units to households and communities. For this reason, Hayashi suggests taking a fresh and more nuanced look at property tax relief during downturns, with an eye towards fairness and equity in addition to revenue.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Mason's What The CJEU’s Hungarian Cases Mean For Digital Taxes

This week, Hayes Holderness (Richmond) reviews Ruth Mason (Virginia), What the CJEU’s Hungarian Cases Mean for Digital Taxes:

Long before the current crisis ramped up fiscal pressure on nations and states, governments have sought to tax the foreigner rather than those at home. Coordination between nations and states has sought to limit the ability of governments to engage in such protectionist or discriminatory taxation; the European Union’s protection of fundamental freedoms and the United States’ Commerce Clause (at least in its dormant capacity) serve as examples. As governments begin considering and adopting digital taxes, such as France’s Digital Services Tax, these coordinated efforts may prevent those governments from utilizing those taxes in protectionist ways by discriminating against out-of-state taxpayers. Indeed, France’s Digital Services Tax has been challenged for exactly that reason because the tax appears to target United States companies while failing to capture most French companies.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Evaluating Economic And Financial Policy Responses To The Coronavirus

This week, Michelle Layser (Illinois) reviews Hiba Hafiz (Boston College), Shu-Yi Oei (Boston College), Diane Ring (Boston College), & Natalya Shnitser (Boston College), Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis, Boston College Law School Legal Studies Research Paper No. 527 (March 2020).

News about the COVID-19 coronavirus pandemic has been breaking by the hour, and for people like me who can’t look away from it, the whole situation is positively overwhelming. Fortunately, a team of researchers at Boston College Law School have already pulled together an excellent working paper that provides an analytical framework to bring the key issues into focus. Their paper, which will be “continually updated to reflect current developments,” is a must read for tax and fiscal policy researchers and lawmakers.

The paper begins by describing a trifecta of policy objectives that are relevant to fight the pandemic. The first objective is to provide a social safety net and social insurance for unemployed workers. Unemployment claims are skyrocketing as supply chains are disrupted and businesses are ordered to shut their doors for the purpose of social distancing. The authors identify several choice-of-delivery questions. Should assistance be delivered directly via cash infusions like universal basic income? Should benefits be tied to work? Should aid be provided to individuals or to businesses (to help avoid layoffs)? A central goal of the paper is to explore how these questions might be answered without undermining the other two objectives.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Shakow's Taxing Bitcoin And Blockchains

This week, Young Ran (Christine) Kim (Utah) reviews a new work by David J. Shakow (Pennsylavania), Taxing Bitcoin and Blockchains—What the IRS Told Us (and Didn't), 166 Tax Notes Fed. 241 (Jan. 13, 2020).

The IRS has issued two new guidance on tax issues related to Bitcoin and other cryptocurrencies–Notice 2014-21 and Rev. Rul. 2019-24. However, by no means, has the guidance answered all questions surrounding the tax treatment of cryptocurrencies. David Shakow's new work, Taxing Bitcoin and Blockchains—What the IRS Told Us (and Didn't), offers an excellent roadmap for those who would like to understand the tax issues of cryptocurrencies along with the recent IRS guidance.

To offer basic knowledge of the blockchain structure, Shakow starts with comparing a "Proof of Work" (PoW) structure with a "Proof of Stake" (PoS) structure. These two structures are used to confirm transactions of cryptocurrencies. Bitcoin uses a PoW consensus process, recording transactions in a "block," which is verified by miners through their work. That work requires the use of substantial computer and electric power. 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Batchelder's Leveling The Playing Field Between Inherited Income And Work Income

This week, Mirit Eyal-Cohen (Alabama) reviews Lily L. Batchelder (NYU), Leveling the Playing Field between Inherited Income and Income from Work through an Inheritance Tax, in Tackling the Tax Code: Efficient and Equitable Ways to Raise Revenue, 48-88 (Jay Shambaugh & Ryan Nunn eds, 2020):

Despite our national mythos as a land of opportunities, financial success in the United States depends heavily on one’s birth circumstances. The U.S. demonstrates the lowest levels of intergenerational economic mobility among high-income countries. Inheritances exacerbate both these challenges because they represent about 40% of all wealth and, on average, parents pass on roughly one-half of their economic advantage or disadvantage to their children. In 2020, Americans are projected to inherit about $765 billion in gifts and bequests. Yet, the current estate and gift tax are projected to raise only $16 billion in 2020, implying an effective tax rate of 2 percent. This means that under the current tax regime, inherited income is taxed at less than one-seventh the average tax rate on income from work and savings.

In this book chapter, Batchelder claims that the exclusion from tax of inherited wealth transfers plays a key role in today’s inequity gap.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Newman's Sales And Donations Of Self-Created Art, Literature, And Music

This week, David Elkins (Netanya, visiting Cornell Spring 2020) ) reviews a recently posted work by Joel S. Newman (Wake Forest), Sales and Donations of Self-Created Art, Literature, and Music, 12 Pitt. Tax. Rev. 57 (2015):

I have always enjoyed the writings of Professor Joel Newman. He combines insightful analysis with a touch of humor that is distinctive in the tax discourse. In the article reviewed here, Professor Newman discussed the tax treatment of sales and donations of self-created art, literature and music.

The first part of the article concerns sales. In 1948, General Dwight D. Eisenhower sold his memoirs. As he was a general and not a professional writer, the sale of those memoirs received capital gains treatment. In response, Congress enacted what is now §1221(a)(3), which provides that the term capital asset does not include “a copyright, a literary, musical, or artistic composition, a letter or memorandum, or similar property, held by a taxpayer whose personal efforts created such property.” Thus, the sale of memoirs by a future general would produce ordinary income. In 2005 Congress made an exception to the general rule (pun intended) and granted songwriters capital gains treatment on the sale of copyright to their works.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Reversing The Fortunes Of Active Funds

This week, Sloan Speck (Colorado) reviews a new work by Adi Libson (Bar-Ilan) & Gideon Parchomovsky (Pennsylvania), Reversing the Fortunes of Active Funds (2020).

In Reversing the Fortunes of Active Funds, Adi Libson and Gideon Parchomovsky propose a novel, tax-oriented solution to a well-established and important problem in the literature on corporate governance: the rise of “passive” investment funds as substantial shareholders in publicly traded companies. Libson and Parchomovsky argue that these passive funds engage in limited oversight with respect to their massive stock holdings. Downward cost pressure discourages informed or engaged voting with one’s hands, and slavish fidelity to benchmark indices precludes voting with one’s feet. The result is that passive funds (and many retail investors, and perhaps society as a whole) free-ride on active funds’ efforts to monitor management. For Libson and Parchomovsky, the answer is a Pigouvian subsidy, administered through the income tax system, to these active funds—the reversal of fortune referenced in their article’s title.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Brunson's Donor-Advised Funds And The Deferral of Charity

This week, Hayes Holderness (Richmond) reviews Sam Brunson (Loyola-Chicago), 'I’d Gladly Pay You Tuesday for a (Tax Deduction) Today': Donor-Advised Funds and the Deferral of Charity, 55 Wake Forest L. Rev. ___ (2020).

Perhaps one of the most entrenched deductions available under the Internal Revenue Code is the deduction for contributions to charitable organizations. Though the deduction has its opponents, it just feels right to the national psyche (perhaps too right, making it hypersalient, as Lilian Faulhaber exposed in a 2012 article). The broad appeal of the deduction may lie in its many potential justifications, such as relieving the government of spending it would otherwise have to do, facilitating civic engagement by letting the donor direct government funds, respecting the notion that spending on others should not be considered personal consumption, and incentivizing the socially beneficial behavior of helping others. In his forthcoming article, Sam Brunson highlights the failure of donor-advised funds to live up to the high goals of the charitable deduction.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Hoffer's Tax Theory & Feral AI

This week, Michelle Layser (Illinois) reviews Stephanie Hoffer (Ohio State), Tax Theory & Feral AI, Public Law & Theory Working Paper Series No. 524 (Jan. 16, 2020)

The robot invasion is upon us. It started out innocently enough, with cute little robots sweeping pennies from the sidewalk. But then people started abandoning their robots in misguided acts of performance art and neglect. Some of the robots they abandoned were digital creatures who lurked at the corners of the internet, going feral and getting smarter. They learned how to write novels and poetry. People bought the prose and verse that the robots had created. And no one paid taxes.

Fortunately, this horror story is fiction (for now). Variations of this hypothetical were presented in a new working paper by Professor Stephanie Hoffer. Hoffer imagines a world in which unowned, digital AI robots are running loose on the internet, creating new value and engaging in real economic transactions. She then invites her readers to join her as she moves through a thought experiment that considers a variety of problems associated with taxing feral AI.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Chason's Cryptocurrency Hard Forks And Rev. Rul. 2019-24

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Eric D. Chason (William & Mary), Cryptocurrency Hard Forks and Revenue Ruling 2019-24, 39 Va. Tax Rev. 277 (2019).

When the IRS issued Revenue Ruling 2019-24 (the "Ruling") on the tax treatment of hard forks and airdrops of cryptocurrencies, many people believed that the Ruling would offer guidance on the tax issues of both hard forks and airdrops that the community of cryptocurrency users generally understand. Is that so? Many commentators and investors in cryptocurrencies say no (see e.g., Mathew Beedham, The IRS' Latest Cryptocurrency Tax Guidance Shows It Still Doesn't Get It). Eric Chason's new work, Cryptocurrency Hard Forks and Revenue Ruling 2019-24, 39 Va. Tax Rev. 277 (2019), is soundly in line with such criticism.

As an introduction, the Ruling is understood as the IRS’s response to tax issues arising from the hard fork of the Bitcoin blockchain that resulted in the creation of Bitcoin Cash, a new cryptocurrency. The hard fork resulted in a windfall to owners of Bitcoin, who, at the time of the hard fork, received one unit of Bitcoin Cash for each unit of Bitcoin owned. This hard fork resulted in many unanswered tax issues relating to such newly created cryptocurrency.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Klein's Contemptuous Tax Reporting

This week, Mirit Eyal-Cohen (Alabama) reviews Israel Klein (Ariel University), Contemptuous Tax Reporting, 2019 Wis. L. Rev. ___ : 

This interesting article is right down my alley, namely R&D tax incentives. Recently, legal scholars (including yours truly here and here) have questioned the justifications for the current R&D tax incentives regime and their effectiveness in inducing additional research expenditures. Every year, about 25 billion dollars of research incentives are claimed by companies. Likewise, the current R&D credit allows companies to reduce tax bills by an amount equal to 14 or 20 percent of their current year Qualified Research Expenditures. The article points out that this tax benefit combined with the U.S. self-assessment principle that encompasses only occasional ex-post audits create an incentive for managers to participate in contemptuous self-reporting, that is reporting their companies’ tax while intentionally miscategorized R&D expenditures. Moreover, the recent repeal of the corporate Alternative Minimum Tax (AMT) in the Tax Cuts and Job Act removed the limits on the extent to which taxpayers can utilize credits and deductions to lower their overall tax liability, thus created a bigger tax break for R&D while perpetuating the incentive to overstate R&D spending.

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Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Zhang's Fiscal Policy In Imperial China

This week, Ariel Jurow Kleiman (San Diego) reviews a new work by Taisu Zhang (Yale), Fiscal Policy and Institutions in Imperial China, forthcoming in the Oxford Research Encyclopedia of Asian History.

Not being a historian, and knowing next to nothing about Imperial China, it was with humble curiosity that I approached Taisu Zhang’s recent work, Fiscal Policy and Institutions in Imperial China.  I was rewarded with a fascinating account of Chinese fiscal history dating back to the Tang dynasty of the 7th-10th centuries.  The piece focuses on the Ming and Qing dynasties in particular, China’s last two imperial dynasties, which ended in the early 1900s.  In this brief review, rather than marching through Zhang’s expert account, I will highlight a few threads that felt of special relevance to our modern fiscal-political discourse.

Zhang starts with Confucius, who, like all good philosophers, gave some thought to taxes.  Specifically, he disliked them. (Admittedly, perhaps he did not give much thought to taxes.)  Confucius equated tax collection with the “pursuit of material gain,” which he placed in opposition to virtue, the ultimate aim.  Thus, a ruler should only levy taxes if justified by some higher virtue.  

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Eden's The GloBE Proposal For A Global Minimum Tax

This week, David Elkins (Netanya, visiting Cornell Spring 2020) reviews a new article by Lorraine Eden (Texas A&M), Taxing Multinationals – The GloBE Proposal for a Global Minimum Tax, Bloomberg Tax Daily Tax Report (Dec. 6, 2019), 49 Tax Mgmt. Int'l J. ___ (2020):

One of the recent manifestations of the OECD's war against base erosion, profit shifting, and international tax competition (although the title of its BEPS project refers only to the first two, the last is also a critical element of its campaign) is the Global Anti-Base Erosion Proposal (known by its somewhat forced acronym GloBE). GloBE proposes the imposition of two new types of taxes by the countries that are members of BEPS initiative. The first is a global minimum tax — at a hitherto unspecified rate — on corporate profits. The second is a tax on base erosion payments. In her paper, Prof. Eden discusses the former, which she refers to as GMinTX.

She begins by discussing the current state of affairs. Host countries tax the domestic-source incomes of foreign corporations. The corporation's home country then has the choice of exempting the corporation from further taxation (a territorial system) or, alternatively, of taxing it on its worldwide income and granting a credit for taxes paid in the host country. Countries adopting a system of worldwide taxation effectively require their resident corporations to pay the difference between the tax rate in the source country and the tax rate in the country of residence. 

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Mehrotra & Bayer's The Promise And Limits Of Fundamental Tax Reform

This week, Sloan Speck (Colorado) reviews a new work by Ajay K. Mehrotra (American Bar Foundation; Northwestern) & Dominic Bayer (J.D. 2020, Northwestern), The Promise and Limits of Fundamental Tax Reform: Contrasting the 1986 Tax Reform Act with the 2017 Tax Cuts and Jobs Act, 53 U.C. Davis L. Rev. Online 93 (2019).

In The Promise and Limits of Fundamental Tax Reform, Ajay Mehrotra and Dominic Bayer illuminate the possible future of the 2017 legislation known as the Tax Cuts and Jobs Act by comparing the law with the Tax Reform Act of 1986. Mehrotra and Bayer establish the political and policy roots of the 1986 Act, then trace the law’s piecemeal erosion over the next decade. Using this template, Mehrotra and Bayer conclude that the 2017 Act seems likely to unravel along similar lines.

Mehrotra and Bayer’s rigorous and informed discussion of the 1986 and 2017 Acts is a significant achievement. As the authors note, the press and politicians have connected these very different legislative initiatives in the popular imagination. Indeed, this juxtaposition might be the most bipartisan aspect of the more recent law: conservatives have trumpeted the 2017 Act as the spiritual successor to the 1986 Act, while liberals have condemned the 2017 Act as a betrayal of the fundamental principles embodied in the earlier legislation. Mehrotra and Bayer provide much-needed context and content to evaluate this category of claims.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Flanagan's Reframing Taxigration

This week, Hayes Holderness (Richmond) reviews Jacqueline Lainez Flanagan (UDC), Reframing Taxigration, 87 Tenn. L. Rev. ___ (2020):

If asked to name one of the top (non-impeachment) hot-button political issues of the day, one might very well pick tax or immigration. Tax and immigration probably would not come to mind, but as Jacqueline Lainez Flanagan argues in Reframing Taxigration, maybe it should. Immigrants regularly interact with federal, state, and local tax systems, and those interactions offer an unexpected avenue for immigration reform. Flanagan’s draft article begins to make the case that that avenue should be pursued.

Despite popular anti-immigrant rhetoric, immigrants—documented or not—contribute to federal, state, and local governments through the payment of income, payroll, sales, and other taxes. It makes sense that immigrants would be subject to these tax laws given their activities in the United States; for example, they earn income, make wages, and purchase goods here. Immigration or citizenship status should not affect tax liability from this point of view, though such status might affect tax liability under a more transactional view of taxation. If taxes are justified as payment for the benefits one receives from the government, then perhaps immigrants should be subject to lower taxes than full citizens who receive more benefits from the federal and state governments.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Sutherland's Cryptocurrency Economics And The Taxation Of Block Rewards

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Abraham Sutherland (Virginia), Cryptocurrency Economics and the Taxation of Block Rewards, Part 1 in 165 Tax Notes 749 (Nov. 4, 2019), Part 2 in 165 Tax Notes 953 (Nov. 11, 2019).

Blockchain, which is the technology behind cryptocurrency, is gradually achieving mainstream adoption. On October 28, 2019, the Securities and Exchange Commission authorized a blockchain startup's pilot project where blockchain will be used to settle trades in stock such as GE and AT&T. This project may challenge the securities trading system for clearing and settlement that has been monopolized by the U.S. Central Depository Agency (DTCC). However, the tax community still has a long way to go in the realm of cryptocurrency, not to mention the underlying blockchain technology, because there are many unresolved issues related to the tax consequences of cryptocurrency. IRS Notice 2014-21 provides that cryptocurrency is not currency—rather, it would be taxed as intangible property and should be included in gross income when received. Recently, IRS Rev. Rul. 2019-24 and FAQ on virtual currency transactions clarify the tax treatment of hard forks and airdrops. To be specific, the splitting of a cryptocurrency under a "hard fork" does not create taxable income if no new cryptocurrency is received, but taxable income is generated by "airdrops" that deliver new cryptocurrency. Nonetheless, the IRS has again punted other long-awaited issues, such as the valuation of cryptocurrency and the foreign reporting requirement.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Education Has Been 'Dumbed Down' In Tax Reform

This week, Michelle Layser (Illinois) reviews Melanie McCoskey (Akron) and Doron Narotzki (Akron), Education Has Been “Dumbed Down” in Tax Reform, 22 Fla. Tax Rev. (2019)

This Thanksgiving, when my cousin raised the subject of gigantic college endowments, my mind went straight to tax (as it does). Coincidentally, I had just read an essay by Professors Melanie McCoskey and Doron Narotzki about recent tax law changes affecting higher education. So, about those college endowments.

The Tax Cuts and Jobs Act introduced a new excise tax on private colleges with large endowments (I.R.C. § 4968). The tax, which applies to colleges with endowments of at least half a million dollars per student, equals 1.4% of their net investment income. Relatively few colleges are hit by the tax, and the authors include a list of the 25 that were. There aren’t many shockers on the list, but some may be surprised to learn which schools are not listed. The bottom line: to get hit by this tax, a school’s endowment not only needs to be gigantic, but it needs to be really gigantic.

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Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Morse's GILTI: The Co-Operative Potential Of A Unilateral Minimum Tax

This week, Ariel Jurow Kleiman (San Diego) reviews a new work by Susan Morse (Texas), GILTI: The Co-operative Potential of a Unilateral Minimum Tax, 2019 Brit. Tax Rev. 512.

Cooperative is not a term often applied to the Tax Cuts and Jobs Act (TCJA).  And yet, as Susan Morse explains in her recent article on “global intangible low-taxed income” (GILTI), the Act does have some cooperative potential.  This potential arises from the new immediate tax on GILTI income—a subset of foreign income—earned by U.S.-parented multi-national corporations (MNCs).  The presence of a mandatory tax removes incentives for countries to race to the bottom with ever-lowering tax rates, to the extent that they do so to attract U.S. MNCs.  Moreover, by providing a foreign tax credit for 80% of foreign taxes paid, the law gives the “right of first refusal” to foreign jurisdictions.  In a sense, the GILTI regime carves out a protected space for foreign countries to tax U.S.-parented MNCs, effectively creating a global tax floor of 13.125% (increasing to 16.4% in 2025).

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Chason's A Tax On The Clones: The Strange Case Of Bitcoin Cash

This week, Mirit Eyal-Cohen (Alabama) reviews Eric D. Chason (William & Mary),  A Tax on the Clones: The Strange Case of Bitcoin Cash, 39 Va. Tax Rev. __ (2019).  

This Article is right down my ally dealing with taxation and innovation. In recent years, Cryptocurrency generally, and Bitcoin specifically, have risen steeply in their market value breaking record percentage increase. Notwithstanding its speculative hype, blockchain technology through community-wide protocols has been a state-of-the-art development that had been spurring change in the fields of economics, technology, and the law. The rise in digital assets has created tax issues involving the definition of blockchain. Is it property or currency? In a series of publications including Rev. Rul. 2019-24, the IRS determined these digital assets are considered property. This Article presents the difficulty of applying such tax treatment encroach upon its administrability and making digital assets’ use impractical when looking at every transaction as subject to gain and loss recognition. It does so by focusing on implications of Cryptocurrency derivatives, also known as Bitcoin forks or Bitcoin Cash.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Listokin's Posner on Tax: The Independent Investor Test

This week, David Elkins (Netanya) reviews a new work by Yair Listokin (Yale), Posner on Tax: The Independent Investor Test, 86 U. Chi. L. Rev. 1159 (2019):

Richard Posner is one of the most influential legal scholars of recent generations. He is perhaps best known as a leading figure in the school of Law and Economics. Complimenting his academic work, he served as a judge on the Seventh Circuit Court of Appeals for 36 years before retiring in 2017. In the field of taxation, one of his more memorable decisions was Exacto Springs Corp. v. Commissioner, 196 F3d 833 (7th Cir. 1999), which concerns the characterization of payments from closely held corporations to individuals who are both shareholders and employees: is the payment properly classified as a salary or as a distribution?

The question of how to characterize payments to shareholders arises whenever shareholders provide services or sell property to the corporation that they control. If a shareholder leases property to a corporation, is the payment that the parties describe as rent truly rent or is it only partly rent and partly a distribution? The issue of classification is particularly significant in the field of international taxation. For example, if a corporation operating in Country A pays what it describes as a royalty to a parent (or otherwise related) corporation in Country B, is the payment actually a deductible royalty or is it a nondeductible distribution? The answer to that question may determine whether Country A can collect tax from the economic activity in its territory.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Glogower & Kamin's The Progressivity Ratchet

This week, Sloan Speck (Colorado) reviews a new work by Ari D. Glogower (Ohio State) & David Kamin (NYU), The Progressivity Ratchet, 104 Minn. L. Rev. ___ (2020):

In The Progressivity Ratchet, Ari Glogower and David Kamin provide further reasons to dislike the headline business tax changes in the 2017 legislation commonly known as the Tax Cuts and Jobs Act, namely the “pass-through” deduction under § 199A and the general reduction in corporate tax rates to 21%. Glogower and Kamin argue that these poorly targeted tax preferences, coupled with private-sector tax gaming and political economy constraints, create the potential for what they term the “progressivity ratchet,” in which lawmakers cannot readily reverse revenue-losing tax preferences by raising nominal rates on high-earning taxpayers. To escape this predicament, Glogower and Kamin suggest restoring the relative penalty for operating in corporate solution, eliminating existing tax preferences, or better targeting those tax preferences that policymakers choose to keep.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Viswanathan's Tax: A Unified Theory of Tax Progressivity

This week, Hayes Holderness (Richmond) reviews Manoj Viswanathan (UC Hastings), A Unified Theory of Tax Progressivity:

I assume I am not the only tax professor who has stood before a group of bright-eyed tax students and explained to them that progressive taxes impose higher tax rates on taxpayers as their income rises, proportionate taxes impose the same tax rates regardless of income, and regressive taxes impose lower tax rates as income rises. I offer to the students that the federal income tax rate brackets provide an example of progressivity; sales taxes an example of regressivity. In A Unified Theory of Tax Progressivity, Manoj Viswanathan reminds me of just how much I have been glossing over in my introductory tax policy lessons.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Does Government Play Favorites? Evidence From Opportunity Zones

This week, Michelle Layser (Illinois) reviews Ofer Eldar (Duke) and Chelsea Garber (Duke), Does Government Play Favorites? Evidence from Opportunity Zones (Oct. 3, 2019).

With the 2020 Census on the horizon, investors nationwide have been lobbying states to expand the areas designated for tax preferred investment under the federal Opportunity Zones law. In 2017, state governors selected 8,764 census tracts for Opportunity Zone designation. These tracts were selected from a pool of 30,981 low-income census tracts and 10,237 contiguous tracts that were eligible under the federal statute. Whether the IRS will permit states to expand or revisit their Opportunity Zone designations after the Census is yet to be seen. In the meantime, Professors Ofer Eldar and Chelsea Garber have provided a fascinating quantitative analysis of factors that may have driven the initial designation process.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Shaviro's Digital Services Taxes

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Daniel Shaviro (NYU), Digital Service Taxes and the Broader Shift from Determining the Source of Income to Taxing Location-Specific Rents.

Earlier this week, the OECD released the Secretariat Proposal for a "Unified Approach" for the new tax nexus and profit allocation rules to address the tax challenges of the increasingly digitalized economy. The proposal covers highly digitalized business models, but is increased in scope to include consumer-facing businesses. The Unified Approach creates 1) a new nexus rule, not dependent on physical presence and instead largely based on sales, and 2) a new profit allocation rule using a formulaic approach to determine a share of residual, or non-routine, profit allocated to market countries. In addition, if a taxpayer has a traditional nexus in the market country, an additional amount of profit consisting of a fixed return for certain baseline marketing and distribution functions that take place in the market country may further be allocated to the market country. In exchange for this new taxing right of market countries, the countries should agree to a binding and effective dispute prevention and resolution mechanism even if there might be cases where there are more functions in the market countries—that is, more allocable profits to market countries—than the baseline marketing and distribution functions.

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This Week's Ten Most Popular TaxProf Blog Posts

1. New York Times, Open Offices Distract Us From Deep Work
2. Bryan Camp (Texas Tech), Lesson From The Tax Court: The Proper Role Of Delay In CDP
3. Paul Caron (Dean, Pepperdine), Week 1 Highlights Of The Dan Markel Murder Trial
4. Wall Street Journal, Is An MBA Still Worth It?
5. Paul Caron (Dean, Pepperdine), University Of Florida Law School Continues Its Rise In Student Quality And Rankings
6. Jonathan Choi (NYU), An Empirical Study of Statutory Interpretation in Tax Law
7. Inside Higher Ed, Speaking Out Against Student Evaluations Of Teaching
8. Peter Arcidiacono (Duke), Josh Kinsler (Georgia) & Tyler Ransom (Oklahoma), Harvard's Preferences For Athletes, Legacies, Dean's Interest, And Children Of Faculty/Staff Overwhelmingly Benefit Whites At Expense Of African-American, Asian-American, And Hispanic Applicants
9. Los Angeles Times, California To Require Mandatory Implicit Bias Training For All Attorneys By 2022
10. Wall Street Journal, U.S. Tax Gap Holds Flat At 14%

Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews Kornhauser’s Conservative Women’s Groups And Tax Lobbying

This week, Ariel Jurow Kleiman (San Diego) reviews Conservative Women’s Groups & Tax Lobbying, Part 5 in Marjorie E. Kornhauser’s (Tulane) forthcoming book, American Voices in a Changing Democracy: Women, Lobbying, and Tax 1924–1936.

“Women Start Meat Strike,” the 1935 Danville Morning News headline read.  Outraged over the rising price of meat, Detroit housewives boycotted butcher shops and ignited shared outrage among homemakers across the nation. Mary Zuk, whom the newspaper (gratuitously) describes as the “five-foot Polish American originator” of the strike and a “fiery, dark complexioned” woman, blamed the high prices in part on processing taxes levied under the Agricultural Adjustment Act (AAA). As Kornhauser explains in the fourth chapter of her forthcoming book, American Voices in a Changing Democracy, Zuk and her fellow protestors believed that butchers used these taxes as an excuse to gouge consumers. Zuk took her protest to Washington to demand repeal of the tax. Although Congress demurred, the Supreme Court later declared the tax unconstitutional.  What started as a local news headline gained national momentum, offering a colorful example of how women’s voices contributed to the burgeoning national conversation about taxes and government spending.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Cooper's The State Death Tax Credit And The SALT Deduction

This week, David Elkins (Netanya) reviews Jeffrey A. Cooper (Quinnipiac), Red States, Blue States: Lessons from the State Death Tax Credit and the “SALT” Deduction, 73 Tax Law. __ (2020) (forthcoming).

One of the more politically contentious provisions of the 2017 Tax Cuts and Jobs Act is the capping of the deduction for state and local taxes (SALT) at $10,000 per married couple. Opponents of the change have argued that it was designed to punish those states that voted for Hillary Clinton in the 2016 presidential elections. In an attempt to reverse the legislation, the leaders of four of these states have sued the federal government. Proponents claim that the cap is necessary to prevent high-tax states from imposing the costs of their expensive programs on the federal government and, indirectly, on residents of low-tax states.

In a timely article, Professor Cooper places the issue in historical context by comparing the SALT deduction to the federal estate tax state death tax credit that was established in 1924 and repealed in 2001. He posits that viewing the 2017 legislation within the broader historical context reveals trends and patterns, providing greater insight than would a study of the SALT deduction in isolation. He considers not only the rhetoric surrounding the various legislative changes but also how states responded to the adoption and then to the repeat of the state death tax credit and examines whether such behavior might be a harbinger of state reaction to the SALT deduction cap.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Hemel's Taxing Wealth In An Uncertain World

This week, Mirit Eyal-Cohen (Alabama) reviews Daniel Jacob Hemel (Chicago), Taxing Wealth in an Uncertain World, 72 Nat’l Tax J. ___ (2019).

Lately, many political candidates are asked to comment about, and many of them have released, proposals to narrow the economic inequity gap by taxing wealth more heavily. This Essay highlights three alternative capital taxation regimes, namely annual wealth tax, mark-to-market, and retrospective capital gains through their exposure to different types of uncertainties.

An annual wealth tax and a mark-to-market income tax are similar in their operation. The annual wealth tax would require taxpayers to estimate the value of all of their assets each year and pay a tax equal to a percentage of that value (perhaps after subtracting the value of liabilities). Thus, an annual wealth tax would have minimal information requirements and will rely only on a point-in-time snapshot of net worth. Yet, under an annual wealth tax, taxpayers will not have to account for assets sold during the year if the proceeds were consumed before the next valuation date. Such a regime was featured in Senator Elizabeth Warren’s proposal to impose 2% tax on $50 million net worth and 3% on $1 billion of net worth.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Osofsky's Agency Legislative Fixes

This week, Sloan Speck (Colorado) reviews a new work by Leigh Osofsky (North Carolina), Agency Legislative Fixes, 105 Iowa L. Rev. __ (2020).

In Agency Legislative Fixes, Leigh Osofsky develops a framework for understanding and analyzing agency actions to correct technical and drafting errors in legislation. Osofsky motivates this framework primary through various examples from the December 2017 tax legislation known as the Tax Cuts and Jobs Act. In addition, Osofsky alludes to a number of other high-profile legislative mistakes in the Affordable Care Act, the Dodd-Frank Act, and elsewhere. Osofsky adeptly interweaves her tax-oriented story with academic work on legislation and administrative law, yielding a rich critique of Treasury’s current practices in handling gaps between Congress’s presumptive or purported intent and prevailing interpretations of statutory text, as enacted. Osofsky concludes by addressing several possible reforms, including an interesting proposal to adjust the revenue baseline in budget reconciliation to account for erroneous scores attributable to congressional mistakes.

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Weekly SSRN Tax Article Review And Roundup: Holderness Reviews Drumbl's Tax Attorneys As Defenders Of Taxpayer Rights

This week, Hayes Holderness (Richmond) reviews Michelle Lyon Drumbl (Washington & Lee), Tax Attorneys as Defenders of Taxpayer Rights, 91 Temple L. Rev. ___ (2019):

Tax attorneys serve many purposes. Two examples have been recently explored in this review series: tax attorneys may provide de facto insurance to their clients or may serve as agents of social justice. To these examples, Michelle Drumbl’s forthcoming essay adds another: tax attorneys defend taxpayer rights. One might be tempted to respond, “Well, of course they do; each tax attorney’s job is to make sure her clients only pay the tax they owe.” The strength of Drumbl’s essay is not to contradict this observation or to dwell on it, but to expose it as too narrow a view of the tax attorney’s function.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Hemel's A Place For Place In Federal Tax Law

This week, Michelle Layser (Illinois) reviews Daniel Hemel (Chicago), A Place for Place in Federal Tax Law, 45 Ohio N.U. L. Rev. ___ (2019). 

Place-based investment tax incentives are nothing new, but they were dragged into the spotlight when Opportunity Zones were introduced through the 2017 Tax Cuts and Jobs Act. Depending on who you ask, OZs are either a long overdue solution to the complicated and administratively inefficient incentives of the past—poised to drive large sums of much-needed capital into otherwise disinvested communities—or a misguided law that may create more problems than it solves. Many academic observers, including myself, view OZs with skepticism. Some are so skeptical that they would recommend we abandon our experiment with place-based investment tax incentives altogether. But Professor Daniel Hemel, expanding on remarks given at the 42^nd annual Ohio Northern University Law Review Symposium, argues in his forthcoming essay that there is a place for “place” in federal tax law. I agree.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Chaffee's Collaboration Theory And Corporate Tax Avoidance

This week, Young Ran (Christine) Kim (Utah) reviews a new work by Eric C. Chaffee (Toledo), Collaboration Theory and Corporate Tax Avoidance, 76 Wash. & Lee L. Rev. 93 (2019).

Although there is a famous tax quote by Justice Oliver Wendell Holmes, "I like to pay taxes. With them I buy civilization."; there is nothing wrong with taxpayers’ efforts to minimize their tax liability in manners the legislative body deems permissible. Such “tax minimization” is legally permissible and distinguished from “tax evasion,” which is the illegal nonpayment or underpayment of taxes. Then, what about the gray area between tax minimization and tax evasion, commonly referred to as “tax avoidance?” Is it permissible to pursue tax avoidance, where taxpayers reduce their tax obligations in a manner that technically complies with the law but violates the spirit of the law?

Eric C. Chaffee's new work, Collaboration Theory and Corporate Tax Avoidance, 76 Wash. & Lee L. Rev. 91 (2019), is an effort to answer this difficult question in the corporate tax context. 

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Weekly SSRN Tax Article Review And Roundup: Kleiman Reviews The Property Tax Forty Years After Prop 13 and Alternative Local Government Revenues

This week, Ariel Jurow Kleiman (San Diego) reviews two recent articles on Californians’ perceptions of property taxes,by Ronald C. Fisher (Michigan State), Robert W. Wassmer (Cal State Sacramento), and Zachary Kuloszewski (Michigan State): Perspectives of the Property Tax Forty Years after Proposition 13 and Support for Alternative Local Government Revenues.

Tax experts are befuddled and frustrated by Americans’ diehard aversion to the property tax, which contravenes professional wisdom on the tax’s salutary qualities and hamstrings local governments’ ability to provide necessary and popular public services.  The rich trove of survey research sparked by the 1970’s property tax revolt, e.g., here and here, speaks to decades of such consternation.  Two recent papers by Fisher, Wassmer, and Kuloszewski use 2016 CalSpeaks surveys to add modern texture to this body of data.

In Support for Alternative Local Government Revenues, the authors conclude that the property tax revolt is “alive and well in California forty years after Proposition 13.”  To arrive there, they asked survey respondents to choose a preferred revenue source to either: 1) make up for a public revenue shortage, or 2) raise revenue to improve inadequate services.  (Side note, data on respondents’ opinions of the adequacy of various public services is interesting on its own.)  In both cases, only about 15% of respondents preferred to raise property taxes, compared to about 30% who preferred to raise the sales tax, and 42-52% preferring to raise fees.  Unsurprisingly, they find that those who self-identify as progressive are more likely to support raising revenue via property taxes, and less likely to support doing so via fees.  Those who identify as conservative are more likely to support fees over taxes.  Aside from ideology, they also find that most other personal characteristics (such as race or education) are not correlated with tax preferences.  Two exceptions to this are homeowners and people with income above $150K, both of whom are less likely to prefer the property tax over other revenue sources. 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews McCaffery's A Better Hope For Campaign Finance Reform

This week, Mirit Eyal-Cohen (Alabama) reviews Edward J. McCaffery (USC), A Better Hope for Campaign Finance Reform.

McCaffrey begins this Article with a gloomy picture of American politics—”dark money” has made the identity of mega-givers and the degree of their political contributions opaque. Referring to 2016 presidential and congressional election biggest givers, he blames the social and political issues in the U.S. to the role of money in politics. Many wealthy donors are spending huge sums to influence democratic politics—to buy politicians or political offices or laws. McCaffery has little hope of changing these facts of human nature.  He demonstrates how legislative, judicial and regulatory actions have failed in solving this problem. But not to worry because he has a plan. McCaffery proposes to utilize the tax system to reduce campaign spending by raising the pre-tax costs of political expenditures. Similar to other Pigouvian models like the cigarettes tax, raising the costs of harmful political activities through taxation will reduce their occurrence. He claims that political contributions is another example where taxation is more efficient in reducing undesired behavior than other regulatory measures or public education campaigns. Yet, his proposal is not exclusive to political campaign contributions. Here, too, he advances his longtime proposal to switch from an income-based to consumption-based tax system, also known as a progressive spending tax. In fact, he admits that there would be no change in the tax treatment of campaign contrition—there will be no provision in the reformed consumption tax system that is specific to political expenditures, other than rules similar to today’s disallowing them as ordinary business deductions or as charitable contributions.

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

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

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

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

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

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

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

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Nagato's Tax Consequences Of The Fukushima Nuclear Disaster

This week, Sloan Speck (Colorado) reviews a new work by Takayuki Nagato (Gakushuin University, Faculty of Law), Tax Losses and Excessive Risk Taking Under Limited Liability: A Case Study of the TEPCO Bailout After the Fukushima Nuclear Disaster, 32 Colum. J. Asian L. 137 (2019).

On March 11, 2011, an earthquake and subsequent tsunami devastated the Fukushima Dai-ichi nuclear power plant, which lies roughly 150 miles north of Tokyo on Japan’s eastern coast. The Fukushima nuclear disaster caused tremendous and far-reaching economic—and, of course, personal—losses. By statute, the operator of the Fukushima plant, Tokyo Electric Power Company Holdings (TEPCO), was held strictly liable for approximately $80 billion of damages that stemmed from the disaster. In a compelling recent article, Takayuki Nagato explores the tax consequences of TEPCO’s damage payments as a vehicle to interrogate the treatment of tax losses and risk-taking more generally. Nagato’s excellent and engaging analysis also adds a parallel strand to scholarly conversations about taxation’s direct and indirect role in disaster relief, as well as current commentaries on Pacific Gas & Electric’s wildfire-driven bankruptcy.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Blank & Osofsky's Legal Calculators And The Tax System

This week, Michelle Layser (Illinois) reviews a new work by Joshua D. Blank (UC-Irvine) and Leigh Osofsky (North Carolina), Legal Calculators and the Tax System, 15 Ohio St. Tech. L.J. ___ (2019).

The IRS has long attempted to aid wary taxpayers by publishing informal guidance that translates tax laws into more understandable statements. In previous work, Professors Joshua Blank and Leigh Osofsky have argued that such plain language guidance often oversimplifies complicated tax laws, opening the door to errors. They have called this characteristic “simplexity.” In their newest article on the subject, Blank and Osofsky identify another—potentially more serious—example of tax guidance that reflects simplexity: automated legal calculators like the IRS’s Interactive Tax Assistant.

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