Friday, September 29, 2023
This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by Jordan M. Barry (USC; Google Scholar) and Victor Fleischer (UC-Irvine; Google Scholar), Tax and the Boundaries of the Firm (2023).
While a significant tax scholarship examines the way that tax may distort firm capitalization, financing firm operations through debt, equity, or retained earnings, Jordan Barry and Vic Fleischer explore how the U.S. corporate income tax distorts non-financial decisions in Tax and the Boundaries of the Firm
. They reflect on the way the corporate tax influences firm decisions about the location of assets and production within a firm, the existence and location of corporate subsidiaries, and the reinvestment of profits by applying Ronald Coase’s transaction cost analysis from his seminal work, The Nature of the Firm
. Coase explained that a decision by a firm about whether it should produce a good internally (“make”) or acquire those goods from other firms (“buy”) depends on the relative benefits, costs, and risks of the two choices.
September 29, 2023 in Scholarship, Tax, Tax Daily, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, September 22, 2023
This week, David Elkins (Netanya; Google Scholar) reviews Robin Morgan (S.J.D. 2022, Harvard), Valuation: Measuring Wealth Under a Wealth Tax (2023).
Valuation is the Achilles heel of any tax system that relies upon…well, valuation. Income tax does its level best to avoid valuation, often simply by adopting a head-in-the-sand attitude and ignoring anything that is difficult to value. Unrealized appreciation is perhaps the notable example but others abound: disputed income, doubtful debt provisions, and certain types of fringe benefits to name a few. On other occasions, ignorance-is-bliss is not a sustainable policy and there is no option other than to attempt the frustrating task of valuation. The theory of practice of transfer pricing is a testimony to the suspicion that the attempt is more often than not an exercise in futility. Property taxes and estate taxes are similarly plagued with problems of valuation. Consider, for instance, the dispute surrounding Michael Jackson’s estate, which the executors valued at about $7 million and the IRS valued at $1.125 billion.
September 22, 2023 in David Elkins, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, September 15, 2023
This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Daniel J. Hemel (NYU; Google Scholar), Phaseouts, 74 Tax L. Rev. __ (2024):
Since the transition from class tax to mass tax in the Second World War, the U.S. income tax system has applied income-based limitations to tax expenditures. In Phaseouts, Daniel Hemel explores why rational policymakers might prefer these benefits-specific limitations (which can be drafted as phaseouts or phase-ins, or as ceilings or floors) to “the more straightforward alternative” of an unrestricted benefit coupled with revenue-neutral rate adjustments across income levels (2). Phaseouts, of course, are legion in today’s Internal Revenue Code, and Hemel does his usual brilliant work in elucidating the contours and stakes of these pervasive provisions, even when deployed by a Congress less disinterested—and perhaps less rational—than one might prefer.
September 15, 2023 in Scholarship, Sloan Speck, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, September 8, 2023
This week, Blaine Saito (Ohio State; Google Scholar) reviews a new work by Shayak Sarkar (UC-Davis; Google Scholar), Internal Revenue's External Borders, 112 Calif. L. Rev __ (2024).
When asked does the IRS aid Immigration and Customs Enforcement (ICE) and other authorities that seek to remove undocumented immigrants, my reflexive response is no. After all, that undermines many of the goals of the tax system from revenue collection to the provision of social welfare programs. But in his piece, Internal Revenue’s External Borders, 112 Calif. L. Rev. ___ (2024). Shayak Sakar shows how the IRS does collaborate in violent immigration raids. It cautions that coordination between the IRS and other agencies is not an unalloyed good. And sometimes our instincts and sense of the protections that the tax system provides can be wrong on the ground.
September 8, 2023 in Blaine Saito, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, September 1, 2023
This week, Michelle Layser (San Diego; Google Scholar) reviews Alex Zhang (Emory), Rethinking Eisner v. Macomber, and the Future of Structural Tax Reform, 92 Geo. Wash. L. Rev __ (2024).
Eisner v. Macomber is a staple of introductory tax law courses. Like many professors, I assign Macomber to illustrate the realization requirement, while downplaying its constitutional significance. For those who need a refresher, the taxpayer in Macomber was a shareholder of Standard Oil. The company distributed a pro rata common-on-common stock dividend that increased the taxpayer’s number of shares but did not change her proportionate interest in the company. The government attempted to tax the stock dividend as income under the Revenue Act of 1916, but the taxpayer challenged the law under the Sixteenth Amendment. The Court sided with the taxpayer, essentially holding that it is unconstitutional to tax accumulated profits until they have been “severed from the capital” through a realization event.
September 1, 2023 in Michelle Layser, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Saturday, August 19, 2023
This week, Tracey Roberts (Cumberland; Google Scholar) reviews Amanda Parsons (Colorado; Google Scholar), Taxing Taxonomies.
In Taxing Taxonomies
, Amanda Parsons introduces the concept of “legibility” into the analysis tax rules. Joining H.L.A. Hart, Roscoe Pound, Roberto Unger, Ronald Dworkin, Duncan Kennedy, Louis Kaplow, and more recently, Lee Anne Fennell, Susie Morse, Dov Fox, and Jacob Goldin, she enters the metanalysis debate around rules versus standards, formalism versus realism, efficiency versus equity, moral versus analogic reasoning, and decisionmaker discretion versus taxpayer opportunism. Drawing from Seeing Like a State
, by James Scott, she explains that “legibility” is the process by which a state sorts activities into categories to make complex systems governable. For those steeped in tax policy, the concept appears to be synonymous with “simplicity.” Ideally tax systems are meant to be “simple,” as well as efficient and equitable, since simplicity supports administrability for those who govern (and collect taxes), and promotes transparency and predictability for those who must comply.
August 19, 2023 in Scholarship, Tax, Tax Daily, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, August 11, 2023
This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews reviews George K. Yin (Virginia), Of Blind Men, Elephants, and the Supreme Court's Misinterpretation of the FBAR Statute:
The United States Supreme Court recently addressed whether a non‑willful penalty under FBAR accrues on a per‑report or per‑account basis in the case of Bittner v. United States. Bittner was a dual citizen unaware of his responsibility to file a report called a Report of Foreign Bank and Financial Accounts (FBAR) under the Bank Secrecy Act from 2007 through 2011. Bittner failed to report 272 accounts in those five years—61 accounts in 2007, 51 in 2008, 53 in 2009 and 2010, and 54 in 2011. The government interpreted the language of the non‑willful penalty as per account and imposed a fine of $2.72 million.
August 11, 2023 in Christine Kim, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, August 4, 2023
This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Doron Nissim (Columbia; Google Scholar), Normal Tax Rate:
Can we predict a company’s effective tax rates? Estimating corporation tax rates is required for forecasting income taxes on operational profit, computing the aftertax cost of capital, estimating the income tax consequences of nonoperating and transitory items, and assessing anomalous income tax expenses in financial statement analysis and valuation. Forecasting, valuation, and earnings quality analysis, among other things, necessitate firm-specific “normal tax rate” estimates. These estimates can be calculated using the reported effective tax rate, the statutory tax rate, or other disclosures such as components of income tax expenses, taxes actually paid, domestic versus foreign earnings and effective tax rates, deferred tax assets and liabilities, and non-GAAP measures and reconciliation.
But what is the typical tax rate for a foreign multinational corporation with subsidiaries all over the world? From a U.S. tax law point of view, corporations are subject to both a normal tax and a surtax calculated on the corporation’s taxable income for the taxable year.
August 4, 2023 in Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, July 28, 2023
This week, David Elkins (Netanya; Google Scholar) reviews Mitchell Kane (NYU) & Adam Kern (NYU), The Use and Abuse of Location-Specific Rent, 76 Tax L. Rev. __ (2023).
The authors of this week’s feature article begin with the premise that an ideal formula for allocating taxing rights among countries would be one that enables them to raise substantial amounts of revenue, allows them to do so efficiently, and assigns rights fairly. The conceptual basis for such an allocation would constitute the holy grail of international taxation. The current system, which relies upon the concepts of residence and source, fail on all three counts. Both residence and source are easily manipulable, distort locational decisions, and are flawed proxies for countries’ contributions to business profits. The proposed alternative of some sort of formulary apportionment has significant drawbacks. If apportionment factors (e.g., employees, assets, and research) are elastic, they would distort locational decisions. Apportioning by sales can be avoided by selling to an unrelated intermediary located in a low-tax jurisdiction.
July 28, 2023 in David Elkins, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, July 21, 2023
This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Kathleen Claussen (Georgetown; Google Scholar), Tax Intelligence, 72 Duke L.J. Online 155 (2023).
The U.S. income tax system collects, alongside revenue, a vast trove of information about taxpayers’ assets, activities, and relationships. Kathleen Claussen, in a provocative essay, proposes that the federal government mobilize this wealth of tax information affirmatively to achieve foreign policy aims. Claussen differentiates her proposal from constructions of “tax policy as foreign policy,” such as those expertly explored by Ashley Deeks and Andrew Hayashi, by emphasizing “tax law for foreign policy” (165), in which tax reporting serves as intelligence gathering, and perhaps even explicitly as surveillance. Claussen situates her proposal within broader trends in foreign policy towards a “geoeconomics toolkit” of “unilateral economic tools” that align private actors with state-centric goals, and Claussen posits that tax may, in fact, help “normalize [this] otherwise exceptional toolkit” (160).
July 21, 2023 in Scholarship, Sloan Speck, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, July 14, 2023
This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Clint Wallace (South Carolina; Google Scholar), A Democratic Perspective on Tax Law, 98 Wash. L. Rev. __ (2023).
Frequently, our tax discussion, and for that matter most of our legal-policy discourse, focuses on economics. In tax, we talk about efficiency often as the first among equals in triad of principles that also include equity, and administrability. Frequently too, our concepts of equity and administrability focus a lot on economics costs and benefits and distribution tables. But too often we do not talk about the concepts of democracy and how the tax system can foster or hamper it. In his article, A Democratic Perspective on Tax Law, Clint Wallace turns our attention on both the existing writings on democracy and tax and adds that for tax policy, there should be an analysis on the basis of democratic ideals that we use to judge these policies. Democracy should stand with efficiency, equity, and administrability as a separate criterion for analyzing the tax system.
July 14, 2023 in Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, July 7, 2023
This week, Michelle Layser (San Diego; Google Scholar) reviews John R. Brooks (Fordham; Google Scholar) and David Gamage (Indiana-Maurer; Google Scholar), Moore v. United States and the Original Meaning of Income.
One of the most fundamental concepts taught to income tax students is the realization requirement. In short, income generally is not subject to taxation until it is realized through a conversion into cash or property. But is realization a constitutional requirement? The Supreme Court is expected to provide an answer to that question next year in Moore v. United States. In that case, the Court has been asked to decide whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states. The taxpayers in Moore are challenging a provision of the Tax Cuts and Jobs Act of 2017 known as the Mandatory Repatriation Tax.
July 7, 2023 in Michelle Layser, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, June 30, 2023
This week, Tracey Roberts (Cumberland; Google Scholar) reviews a work by Bridget J. Crawford (Pace; Google Scholar), Victoria J. Haneman (Creighton; Google Scholar) & Jonathan G. Blattmachr (Milbank LLP), Gift Tax Consequences of Luxury Hospitality: An Introduction, 115 Tax Notes Fed. 1157 (May 15, 2023).
In Gift Tax Consequences of Luxury Hospitality: An Introduction, Bridget Crawford, Victoria Haneman, and Jonathan Blattmachr examine the possible gift tax consequences of luxury consumption transfers. They explore the scope and the purpose of the federal gift tax through variations on three different scenarios: (i) Mom rents a mansion for a month in an exclusive resort town for her family ($800,000 FMV),(ii) Dad lets son ride to his college reunion in Chicago via his private jet ($70,000 FMV), and (iii) Rich invites friends for an all-inclusive nine-day yacht cruise ($5 million FMV).
There are a few clear guidelines in applying the federal gift tax. Transfers of cash and property clearly fall within its ambit. For example, if Mom, Dad and Rich simply give the recipients cash to purchase the lodging, transportation, and travel experiences, the cash transfers are clearly subject to the gift tax. On the other hand, personal spending and acts of economic waste do not fall within its ambit.
June 30, 2023 in Scholarship, Tax, Tax Analysts, Tax Daily, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, June 23, 2023
This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Xuan-Thao Nguyen (Washington) and Jeffrey A. Maine (Maine), Crypto Losses 2024 U. Ill. L. Rev. __ .
Recently the crypto industry has been hit hard by various market forces and scams, leaving investors with trillion-dollar losses. In January 2023, in response to confusion surrounding abandoned and worthless cryptocurrency, the IRS weighed in on the deductibility of crypto losses (see ILM 202302011). The Chief Counsel Advice Memorandum stated the obvious—that taxpayers cannot claim an abandonment loss without an affirmative act (like sale or exchange) and cannot take a worthless deduction for the temporary decline in value. Furthermore, even if the loss was realized, the loss deduction would be disallowed because section 67(g) suspends miscellaneous itemized deductions for taxable years 2018 through 2025.
June 23, 2023 in Christine Kim, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, June 16, 2023
This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Hillel Nadler (Wayne State), Taxing Zero, 26 Fla. Tax Rev. _ (2023):
Companies in the technology industry that offer “free” goods and services frequently collect a large amount of user data. They use this information to show more relevant advertisements and then charge higher prices. Furthermore, user data can be packaged and sold to businesses, who can then use it to better understand customer behavior or determine the viability of a new product offering. In one case, a company provided a popular, free version of antivirus software that also collected and sold data on users’ internet browsing habits.
Zero-price transactions are common, but not unique to the digital economy. Aside from the latter, there are numerous multi-sided platforms, such as credit card companies and investment brokers, that charge high fees to their vendors in exchange for customer data on trading and purchasing habits. As the saying goes, “nothing in life is free,” so are “zero-price” products and services because consumers pay in-kind with their time, attention, or personal information.
June 16, 2023 in Legal Education, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup | Permalink
Friday, June 2, 2023
This week, David Elkins (Netanya; Google Scholar) reviews a new paper by Daniel Shaviro (NYU, Google Scholar), Ancillary Benefits and Income Versus Consumption Taxation in Liam Murphy’s and Thomas Nagel’s 'The Myth of Ownership':
The question of whether income or consumption is a more appropriate tax base has occupied a prominent place in the tax policy discourse since about the 1970s. Although deliberated in the literature for centuries — the names Hobbes, Smith, Mill, Fisher, and Kaldor come to mind — it appears to have been William Andrews’ 1974 Harvard Law Review article, A Consumption-Type or Cash Flow Personal Income Tax, that brought the issue to the attention of tax academics and policymakers. That article, which may also be credited with having introduced the Cary Brown theorem into the legal academic discourse, triggered debate concerning the proper tax base and analysis of the extent to which the current income tax actually does tax income. It may also have indirectly sparked the call in some political quarters to replace the income tax with a consumption tax.
June 2, 2023 in David Elkins, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup | Permalink
Friday, May 26, 2023
This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Gregg D. Polsky (Georgia; Google Scholar) & Ethan Yale (Virginia; Google Scholar), A Critical Evaluation of the Qualified Small Business Stock Exclusion, 42 Va. Tax Rev. 353 (2023).
After 2017’s Tax Cuts and Jobs Act, some commentators predicted a renaissance in taxpayers’ use of the statutory exclusion for gain from qualified small business stock under § 1202. In 2015, Congress made permanent the provision’s 100 percent exclusion that emerged in the wake of the Great Recession, and the TCJA’s fourteen-point reduction in corporate rates heralded new benefits to bucking longstanding conventional wisdom that taxpayers should operate nonpublic companies as passthroughs. These predictions didn’t really come to pass, as Polsky and Yale observe in their magisterial exegesis of § 1202, A Critical Evaluation of the Qualified Small Business Stock Exclusion.
May 26, 2023 in Scholarship, Sloan Speck, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, May 19, 2023
This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), Automated Agencies, 107 Minn. L. Rev. 2114 (2023).
A lot of the news these days are around the rise of AI like ChatGPT. But already, we have weaker forms of virtual assistants. These days, I can often “chat” with an airline’s chatbot when my flight is delayed. Federal agencies, like the IRS, have implemented similar tools to present people with user friendly answers to their questions. But in their new article, Automated Agencies, 104 Minn. L. Rev. 2115 (2023), Joshua D. Blank and Leigh Osofsky raise some concerns. Building on their work on Simplexity, a term the authors coined for government pronouncements to the general public that tend to oversimplify the actual underlying complicated and nuanced law, they note that automated legal guidance tools may actually exacerbate the problems of Simplexity to a frightening extent. And often agency officials are unaware of these problems.
May 19, 2023 in Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, May 12, 2023
This week, Michelle Layser (San Diego) reviews Jay A. Soled (Rutgers; Google Scholar) and Kathleen DeLaney Thomas (UNC; Google Scholar), Predictive Analytics and the Tax Code, 51 Fla. St. U. L. Rev. __ (2023).
I am obsessed with ChatGPT. If you haven’t seen it yet, I suggest that you finish grading and then go check it out (in that order). It is at once fascinating and terrifying, and it leaves little doubt that the artificial intelligence (AI) tools of the future will dramatically impact most aspects of the legal profession. And the future may not be so far off. In a forthcoming article, Professors Jay A. Soled and Kathleen DeLaney Thomas argue that today’s predictive analytics tools are already capable of fundamentally changing the application of the tax code’s civil tax penalty regime.
To demonstrate how, the authors begin with a review of current theory about taxpayer compliance and the civil tax penalty regime.
May 12, 2023 in Michelle Layser, Scholarship, Tax, Tax Daily, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, May 5, 2023
This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by Kimberly Clausing (UCLA; Google Scholar), Capital Taxation and Market Power.
On Tuesday the Wall Street Journal reported that Americans are facing continued price increases, not because of pandemic-related supply-chain disruptions or because of rising energy costs following the Russian invasion of Ukraine, but because corporations are simply padding their profits. How is this possible in a free market? Well, the market is not exactly free. Mergers and consolidations have given large corporations the ability to exercise market power. Because so few companies compete with one another for customers, they can set monopolistic prices. Likewise, when there are fewer companies competing for workers or resources, they can engage in monopsony, paying lower wages and lower prices than they would be able to claim in a competitive market. Scholars and journalists have reported that employers are forcing employees across many sectors to work longer, for less pay, and in more difficult conditions, and are effectively reducing employment opportunities.
May 5, 2023 in Scholarship, Tax, Tax Daily, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, April 28, 2023
This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Walter Hellerstein (Georgia) and Andrew Appleby (Stetson; Google Scholar), The Internet Tax Freedom Act at 25, 107 Tax Notes St. 7 (Jan. 2, 2023).
Policy on how to tax digital platforms, such as Google or Facebook, presents heated debate across the globe. Digital Services Taxes and Pillar One of the global tax deal are notable examples. Domestically, the debate occurs at the state and local tax level. At least ten states in recent years entertained imposing a Digital Advertising Tax, while Maryland did implement one. Maryland’s Digital Ad Tax has been challenged in courts, and the oral argument at the Maryland Supreme Court is scheduled for Friday, May 5, 2023. One of the main issues is whether the tax violates the Internet Tax Freedom Act (ITFA) by discriminating against the digital economy, as it taxes only digital advertising platforms and not traditional advertising.
April 28, 2023 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, April 21, 2023
This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Michelle D. Layser (San Diego; Google Scholar), The Unknown Consequences of Place-Based Tax Incentives, 56 Loy. L.A. L. Rev. __ (2023):
I like history, and I like tax. So it’s always fun to review articles that combine them both and utilize tax history to inform us about important lessons from the past. This essay briefly utilizes this methodology in the context of urban poverty tax incentives. While tax scholars such as Ellen April have long warned against the use of economic incentives to solve inner-city poverty and promote low-income neighborhood investment, such large zone-based tax benefits have proliferated substantially despite tangible evidence that they indeed revitalize distressed neighborhoods and improve the position of low-income communities. Economic mobility has long been linked to the local environment and neighborhoods in which people grow up. Yet, despite their popularity, we know little about how place-based tax incentives affect communities. Existing economic studies on the enterprise zone, opportunity zone, and new market tax benefits have not produced meaningful evidence of beneficial effects on poverty or the labor market. Current location-based tax incentives are limited as they subsidize a wide range of activities without a clear link to anti-poverty efforts.
April 21, 2023 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, April 14, 2023
This week, David Elkins (Netanya, visiting NYU 2021-2023; Google Scholar) reviews a new paper by James R. Repetti (Boston College; Google Scholar), International Tax Policy's Harm to Manufacturing and National Interests, 2023 Wis. L. Rev. __ :
The discourse in the field of international tax avoidance has always contained an underlying tension. On the one hand, politicians, the popular press, and member of the academic community often lament that international tax avoidance can involve little more than shuffling papers, that the change in structure is not reflective of any change in actual economic activity. Prototypical examples include corporate inversions, the placing of intellectual property in tax havens, and routing royalties and interest through strings of related entities. Sensitive to such objections, Congress or the Treasury may impose restrictions that deny beneficial tax treatment to maneuvers that lack economic substance. The problem is that corporations may respond by moving their real economic activity abroad, and the same pundits who condemn the form-over-substance of certain types of tax avoidance will now decry the substance, namely loss of American jobs and other harm to the domestic economy.
April 14, 2023 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, April 7, 2023
This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Christopher H. Hanna (SMU) & Cody A. Wilson (Gibson, Dunn & Crutcher, LLP), U.S. International Tax Policy and Corporate America, 48 J. Corp. L. 261 (2023).
Over the last decade, conversations about corporate tax reform in the United States have reflected a broad range of competing visions for cross-border business taxation. In U.S. International Tax Policy and Corporate America, Christopher Hanna and Cody Wilson argue that the Tax Cuts and Jobs Act in 2017 and the Inflation Reduction Act in 2022—each significant legislative changes to U.S. international taxation—may foreshadow a third major shift. Hanna and Wilson speculate that this next step could yield “a worldwide no-deferral system at a low corporate tax rate.” Potentially more surprising: this new regime could garner support from “Corporate America,” which Hanna and Wilson define as U.S.-based publicly traded corporations.
April 7, 2023 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, March 31, 2023
This week, Michelle Layser (San Diego) reviews Tessa R. Davis (South Carolina; Google Scholar), Amy H. Soled (Rutgers) & Jay A. Soled (Rutgers; Google Scholar), Revisiting the Tax Treatment of Alimony, 72 Kansas L. Rev. __ (2023):
Like many tax professors, I teach my students that the tax laws that exist today reflect choices about what, when, and who to tax. In many cases, lawmakers have options, and the best approach is not always obvious. The tax treatment of alimony is a case in point. When it comes to support payments made by a divorced person to a former spouse, Congress has three options: tax the recipient, tax the payer, or tax them both. For many years, the law allowed alimony payers to deduct the payments, and it required recipients to include alimony in their income. The Tax Cuts and Jobs Act changed the tax treatment of alimony by disallowing the deduction for alimony payers and allowing recipients to exclude the payments from income. But did the change reflect good policy?
March 31, 2023 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, March 24, 2023
This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by James Alm (Tulane; Google Scholar), Jay A. Soled (Rutgers; Google Scholar) & Kathleen DeLaney Thomas (North Carolina; Google Scholar), Multibillion-Dollar Tax Questions, 84 Ohio St. L.J. __ (2023).
The tax gap is an enduring problem. We should raise quite a bit more revenue than is collected by the IRS. Efforts to address the tax gap usually focus on greater audits and enforcement as well as new reporting requirements. But these measures are facing increasing political pressure. One need only look to the vilification of the increase in IRS funding, something for which tax policy experts have long advocated, to see this problem. Given these constraints, what then can we do? James Alm, Jay A. Soled, and Kathleen DeLaney Thomas in their piece, Multibillion Dollar Tax Questions, 84 Ohio St. L.J. __ (2023), say that compliance may be improved by asking the right questions in the right way.
March 24, 2023 in Blaine Saito, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, March 17, 2023
This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by Clinton G. Wallace (South Carolina; Google Scholar) and Shelley Welton (Penn), Taxing Luxury Emissions, 106 Cornell L. Rev. __ (2023).
One of the greatest challenges to global coordinated action on climate change is climate justice. The vast majority who will suffer the most from climate change have contributed very little to the aggregate stock of carbon emissions during their lifetimes and enjoy few of the legacy benefits that industrialization has yielded over the past 100 years. Most of the discussions about matching responsibility for climate change to its benefits have approached the issue at a nation-state level. Underdeveloped countries, including most of the Global South, argue that the countries who developed using financially cheap, if globally harmful, fossil fuels should be subject to regulation or taxation, since they caused the bulk of the problem. They also argue that, until they reach the basic standard of living enjoyed throughout Europe and the United States, they should be exempt from such taxation or regulations.
March 17, 2023 in Scholarship, Tax, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, March 10, 2023
This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Benjamin Alarie (Toronto; Google Scholar; CEO, Blue J Legal), The Rise of the Robotic Tax Analyst, 178 Tax Notes Fed. 57 (Jan. 2, 2023).
ChatGPT, an artificial intelligence chatbot, is generating buzz in legal academia and practice. On November 30, 2022, OpenAI made ChatGPT available for public use through an open beta. In less than one week, the system was deployed by more than 1 million registered users. Driving this extremely rapid adoption were claims — and plenty of evidence — of impressive algorithmic feats performed by ChatGPT. The capabilities of this technology reportedly include achieving passing scores on practice bar and medical board examinations. Unsurprisingly, many law schools are discussing how to cope with students' using this technology to potentially cheat in their writing and exams. On the other hand, TaxBuzz said something the tax community would be glad to hear:ChatGPT's tax advice was wrong 100% of the time.
March 10, 2023 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, March 3, 2023
This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Diane Ring (Boston College; Google Scholar) & Costantino Grasso (Manchester Metropolitan; Google Scholar), Beyond Bribery: Exploring the Intimate Interconnections Between Corruption and Tax Crimes, 85 L. & Contemp. Probs. 1 (2022).
Complex economic crimes have emerged as a major menace to the international society in recent years. Yet, few studies have investigated the connections between tax fraud and corruption. While “corruption” has been referenced within the tax abuse context, analysis has been mostly focused on “bribery,” i.e. paying a government official to avoid taxes. There remains a wide gap between the two ends of such spectrum, in which tax avoidance and evasion play a significant role. Various forms of corruption such as “nepotism, asynchronous exchanges, and unreciprocated but corrupt granting of favors” are not included in international terminology as of yet. The legal literature generally rejects a corruption theory beyond bribery. Legal experts appear to oppose a more comprehensive definition of corruption for several reasons including, but not limited to, lack of supported evidence, difficulties to uncover, prove, and publicize tax corruption, and infractions of the “Principle of legality.”
March 3, 2023 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, February 24, 2023
This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Erin Henry (Arkansas; Google Scholar), Jennifer Luchs-Nuñez (Colorado State; Google Scholar) & Steven Utke (Connecticut; Google Scholar), Do Corporate Taxes Impede Merger and Acquisition Activity? Evidence from Private Corporations (Feb. 9, 2023)
The intuition that business income taxes affect the rate and volume of merger and acquisition activity has a certain theoretical—and anecdotal—appeal. The empirical challenges to validating this intuition are, however, legion. M&A implicates myriad tax benefits and detriments, firms’ abilities to monetize these tax benefits varies, and study design and data collection present significant hurdles. In a recent paper, Erin Henry, Jennifer Luchs-Nuñez, and Steven Utke employ an innovative natural experiment and proprietary IRS data to address taxes’ role in M&A involving closely held corporations. The authors show that entity-level tax cuts operate principally at the intensive margin, leading buyers to pay moderately lower prices for targets and their assets. Consistent with other research, the authors find little aggregate effect at the extensive margin—on the overall number of acquisitions.
February 24, 2023 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, February 17, 2023
This week, David Elkins (Netanya, visiting NYU 2021-2023; Google Scholar) reviews a new paper by Susan Morse (Texas; Google Scholar), Tax Without Law: Book Review of Wei Cui, The Administrative Foundations of the Chinese Fiscal State, 26 Fla. Tax Rev. __ (2023).
In this week’s feature article, Susan Morse reviews a new book by Wei Cui (British Columbia), The Administrative Foundations of the Chinese Fiscal State (Oxford University Press 2022). While it might be a bit unusual to review a review, I think that Professor Cui’s important book and Professor Morse’s insightful comments make it a worthwhile endeavor.
Professor Cui describes the Chinese fiscal system as divorced from the rule of law. No legal norms guide the tax administration, audits are practically nonexistent, and there is no meaningful judicial review. At the heart of the system are hundreds of thousands of revenue managers, each responsible for perhaps 1,000 taxpayers. One of their functions is to serve as a “nagging adult presence,” to make sure that taxpayers register and file on time.
February 17, 2023 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, February 10, 2023
This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Brian Galle (Georgetown; Google Scholar) & Stephen Shay (Boston College; Google Scholar), Admin Law and the Crisis of Tax Administration, 101 N.C. L. Rev. __ (2023).
One of the major issues in taxation is the application of administrative law principles, derived from the Administrative Procedure Act (APA) and the case law interpreting it. Scholars like Professor Kristin Hickman have persuasively shown that tax is not exceptional, and the federal courts, starting with Mayo Foundation for Medical Education & Research v. United States, have followed. This author too has fallen closer to the line of applying these administrative law doctrines to the IRS and Treasury’s administrative actions. But in their article, Admin Law and the Crisis of Tax Administration, Professors Brian Galle and Stephen Shay force us to grapple with some of the effects of this revolution.
February 10, 2023 in Blaine Saito, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, February 3, 2023
This week, Michelle Layser (San Diego) reviews Sebastien Bradley (Drexel; Google Scholar), Da Huang (Utah; Google Scholar), Nathan Seegert (Utah; Google Scholar), Household Asymmetric Risk of Foreclosure From Tax Assessment Limit (Jan. 21, 2023).
During the pandemic, U.S. housing prices soared. In many cities, rising home prices can trigger higher assessed values for property taxation. But in California and 16 other states with assessment limits, laws limit how much appreciation cities can take into account for property tax purposes. That is good news for homeowners here in San Diego, where housing prices in March 2022 were up a whopping 29.9% from the previous year. Since California law caps the annual increase in assessed value at 2%, homeowners were protected from property tax spikes during that period.
Then came the fall. From April to September, prices in San Diego fell 5.2%, and they have continued to drop.
February 3, 2023 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, January 27, 2023
This week, Tracey Roberts (Cumberland; Google Scholar) reviews a new work by David A. Weisbach (Chicago; Google Scholar), Samuel S. Kortum (Yale; Google Scholar), Yujia Yao (IMF) and Michael Wang (Northwestern), Trade, Leakage, and the Design of a Carbon Tax (Jan. 20, 2023):
Communities throughout the world are facing extreme weather events, including heat waves, droughts, wildfires, severe storms events, tornados, hurricanes/ tropical cyclones, storm surges and floods. Important and unique ecosystems are suffering irreparable harm, including polar and high mountain areas, tropical systems, and coral reefs. The risks of large-scale climate shifts, such as deglaciation, ice sheet loss, rapid sea-level rise, ocean acidification, and changes in thermohaline circulation system are rising. We are currently witnessing secondary effects of these processes including biodiversity loss, fishery collapse, deforestation, conflicts over natural resources, global migration, and threats to economic, social and political stability. All countries have a stake in these outcomes. Ideally, all countries would coordinate their efforts to address climate change.
January 27, 2023 in Scholarship, Tax, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, January 20, 2023
This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Brian D. Galle (Georgetown; Google Scholar), David Gamage (Indiana Maurer; Google Scholar), & Darien Shanske (UC Davis; Google Scholar), Solving the Valuation Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. __ (2023).
It is well known that our income tax system is based on a realization approach which avoids valuation problems but enables the rich to pay little in taxes. Brian Galle (Georgetown), David Gamage (Indiana), and Darien Shanske (UC Davis) address this inequality brilliantly in their article Solving the Valuation Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. __ (forthcoming 2023). To solve the valuation problem, they propose that governments take payments from the rich by receiving notional equity interests, called "ULTRAs." ULTRA stands for unliquidated tax reserve accounts and is similar to a government claim on a portion of the stock of a business.
January 20, 2023 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, January 13, 2023
This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Reuven S. Avi-Yonah (Michigan, Google Scholar) & Nir Fishbien (Caplin & Drysdale, New York), What Would Surrey Say? The Long Reach of Stanley S. Surrey (2023).
Throughout his career, which veered between academia and government service, Stanley S. Surrey never wavered in his dedication to advancing policy. In 1950, he spent three years at the University of California, Berkeley School of Law, before making the transfer to Harvard Law School, where he stayed for more than three decades. During his time in office, he served two significant terms in the Department of the Treasury: first, as a temporary adviser and tax legislative counsel from 1937 to 1947, and then as the head of the executive branch’s tax policy division as the first Assistant Secretary of the Treasury for Tax Policy from 1961 to 1969. While working at the Treasury, Surrey was a major player in shaping federal tax policy. There has never been an assistant secretary for tax policy with as much of a public and legislative profile as Surrey; his “Selected Speeches and Testimony” during his tenure in office fill more than 700 pages (and that’s just the ones he decided to include in this annotated collection).
January 13, 2023 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, January 6, 2023
This week, David Elkins (Netanya, visiting NYU 2021-2023; Google Scholar) reviews a new paper by Heydon Wardell-Burrus (Oxford), State Strategic Responses to the GloBE Rules (2022).
The ability of multinational enterprises (MNEs) to reduce their tax liability by exploiting fissures in the international tax regime prompted the OCED to launch its BEPS (Base Erosion and Profit Shifting) initiative. The most recent iteration of that initiative, known as BEPS 2.0, rests upon two pillars. Pillar 1 is designed to allocate taxing rights to countries in which the consumers of digital services are located. Pillar 2 (also referred by the rather inelegant acronym GloBE, for Global Anti-Base Erosion) is intended to guarantee that MNEs are subject to a global minimum tax rate of at least 15%. As Wardell-Burrus points out, one of the novelties of Pillar 2 is that that it treats states as strategic actors, competing with each other to attract investment. Accordingly, many of the rules are designed to limit the capacity of states to engage in certain types of tax competition.
January 6, 2023 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, December 16, 2022
This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by George K. Yin (Virginia), Textualism, the Role and Authoritativeness of Tax Legislative History, and Stanley Surrey, 86 Law & Contemp. Probs. __ (2023).
In Textualism, the Role and Authoritativeness of Tax Legislative History, and Stanley Surrey, George Yin uses Stanley Surrey’s writings to reflect on the edicts of new textualism as applied to tax statutes. Surrey, of course, is a foundational figure in postwar tax policy, and his lateral and longitudinal engagement, inside and outside of government, sheds light on virtually every iteration of tax legislation from the late 1930s through the early 1980s—just shy of the judiciary’s textualist turn, as led by Antonin Scalia. Although Yin’s speculations are emphatically counterfactual, his project ably bridges two eras in legal history, shedding light on what changed—and perhaps what was lost—as the last vestiges of the New Deal order yielded to the rise of modern conservatism.
December 16, 2022 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, December 9, 2022
This week, Tracey Roberts (Cumberland; Google Scholar) reviews Roberta Mann (Oregon), Targeting Plastic Pollution with Taxes, 37 J. Land Use & Envtl. L. __ (2022).
In the 1967 film, The Graduate, Benjamin Braddock has just finished college and, having returned to his parents' Pasadena home, he is trying to avoid the one question everyone keeps asking: "What are you going to do with your life?" One of his father’s business partners, Mr. McGuire, pulls Ben aside to make a recommendation: "I just want to say one word to you. Just one word. ... Are you listening?... Plastics.... There's a great future in plastics. Think about it. Will you think about it?... Enough said. That's a deal."
It’s a deal Americans took and ran with. Since the 1970s, plastics have come to define our way of life. Plastic seemed to be the ideal substance; it is strong, light-weight, durable, and cheap. Now, decades later, we realize that durability has a cost that belies the adjective “cheap.”
December 9, 2022 in Scholarship, Tax, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, December 2, 2022
This week, Michelle Layser (San Diego) reviews Joshua D. Blank (UC Irvine) & Ari Glogower (Northwestern), The (Uncertain) Future of Corporate Tax Shelters, in Corporate Tax Research Handbook (Reuven Avi-Yonah, ed., Edward Elgar Publishing, forthcoming, 2023).
Last August, Congress approved a plan to provide the IRS with $80 billion in funding over the next 10 years. Though the details about how the IRS will use the funding are still unfolding, many of us hope the IRS will use the extra money to clamp down on abusive tax planning activities by high-income and corporate taxpayers. In recent years, lack of resources has hindered the agency’s capacity to police taxpayer abuses, and increased funding was desperately needed. But money alone may not be enough for the IRS to effectively fight taxpayer abuses. In a new book chapter focused on corporate tax shelters, Professors Joshua Blank and Ari Glogower argue that the IRS will also need new tools to identify abusive activities.
December 2, 2022 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup | Permalink
Friday, November 18, 2022
This week, Blaine Saito (Northeastern; Google Scholar) reviews a new work by Erin Adele Scharff (Arizona State) & Darien Shanske (UC-Davis; Google Scholar), The Surprisingly Strong Case for Local Income Taxes in the Era of Increased Remote Work, 74 Hastings L.J. __ (2022).
Conventional wisdom and heuristics are often helpful, but when they are not reexamined every so often, they ossify and lead us astray. One of those adages is that U.S. local governments should never use income taxes and only rely on property taxes. But in their piece, The Surprisingly Strong Case or Local Income Taxes in the Era of Increased Remote Work, Erin Adele Scharff and Darien Shanske show that a relatively low and simple local income tax has great benefits to municipal governments.
As noted, numerous people have said that localities should not impose progressive income taxes.
November 18, 2022 in Blaine Saito, Scholarship, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, November 11, 2022
This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Lital Helman (Ono Academic College) Innovation Funding and the Valley of Death, 76 SMU L. Rev. ___ (2023).
Economic theorists have long held that innovation is the key to economic development and many positive spillovers. Alas, as a public good with high risk, non-rivalry, non-exclusive characteristics, it may suffer underinvestment and underproduction in the free private market. Accordingly, almost every legal system in the world has long incorporated an array of innovation incentives that overcome this inherent market inefficiency. Some of those stimuli mechanisms include intellectual property rights (IP), cash transfers (mostly grants and prizes), and various tax incentives. In their recent article Innovation Policy Pluralism, Daniel Hemel & Lisa Quellette discuss ways to combine, complement, and alternate between such innovation policy mechanisms based on the overall government purpose (allocation or incentive) in each case.
November 11, 2022 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, November 4, 2022
This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews two new works by David Kamin (NYU), Why Book Minimum Taxes? Taking Politics Seriously, 177 Tax Notes Fed. 193 (Oct. 10, 2022), and The Ambition and Limits of the Global Minimum Tax, 177 Tax Notes Fed. 385 (Oct. 17, 2022).
The two articles I introduce today were written by David Kamin, who served as Deputy Assistant and Deputy Director of the National Economic Council under President Biden until May of 2022. Kamin’s articles focus on the corporate alternative minimum tax (AMT) and are his first publications since returning to academia. On a personal note, I was thrilled to discover that Kamin chose to write on a topic that is dear to me.
Kamin’s first article, Why Book Minimum Taxes? Taking Politics Seriously, presents a political argument for book minimum taxes. It explains how book minimum taxes address the challenge of coordinating political actors inside the United States and around the world. The recent enactment of a new corporate AMT in the United States has generated a mixed response. Some critics argue that Congress should fix the corporate income tax system directly by limiting subsidies, raising rates and not imposing another tax base as a backstop.
November 4, 2022 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, October 28, 2022
This week, Tracey Roberts (Cumberland; Google Scholar) reviews Tsilly Dagan (Oxford; Google Scholar), Tax Justice in the Era of Mobility and Fragmentation, 4 Revue européenne du droit, Paris: Groupe d’études géopolitiques (Summer 2022).
At a recent Oxford University Philosophy, Law, and Politics Colloquium at All Souls College, Dr. Liam Murphy (NYU) presented his paper, “Why Tax Wealth?” to a large assembly of students and scholars hailing from countries all over the globe and bringing insights from an array of disciplinary fields. He acknowledged that taxing wealth may be an effective and efficient means to tax income from capital (which largely escapes taxation in the United States), but noted that his focus in this article was on the role wealth taxation plays in securing economic justice; he asked whether wealth, itself, contributes to welfare. As some of the colloquium participants noted, Murphy’s fellow political philosopher, Professor Martha Fineman (Emory), would argue that human beings experience an array of vulnerabilities in this material world, that we have differing levels of resilience, that wealth provides an important form of resilience, and that the state has an important role in ensuring our resilience.
October 28, 2022 in Scholarship, Tax, Tax Scholarship, Tracey Roberts, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, October 21, 2022
This week, David Elkins (Netanya, visiting NYU 2021-2023; Google Scholar) reviews a new paper by Alex Raskolnikov (Columbia), Should Only the Richest Pay More? (2022).
Reportedly, F. Scott Fitzgerald once remarked to Ernest Hemingway that “the rich are different from you and me,” to which the latter replied, “Yes, they have more money.”
Taxing the rich has a strong intuitive and political appeal. However, the call to do so means little unless we identify whom we mean by “the rich.” In 2011, the Occupy Wall Street movement demanded in the name of the “99%” that the “1%” pay more. Under this conception, a person who is wealthier than 98.99% of the population is a member of the downtrodden “99%,” and has a place in the front line of protesters calling for increased taxes on the rich. Since then, proposals to tax the rich have tended to raise the threshold even higher. The Biden administration’s proposal to include unrealized gain in the income tax base would have applied only to those with assets of over $1 billion or income of over $100 million per year for three consecutive years.
October 21, 2022 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, October 14, 2022
This week, Shayak Sarkar (UC-Davis; Google Scholar) reviews Nyamagaga Gondwe (Wisconsin; Google Scholar), The Tax-Invisible Labor Problem: Care, Work, Kinship, and Income Security Programs in the IRC, 102 B.U. L. Rev. ___ (2022)
We must all care for others. Yet for the millions of women who do the yeoman’s share of American care work, the ways they are compensated, if at all, raise questions for tax law and implications for us all. It is to the phenomenon of nonmarket care work that Professor Nyamagaga Gondwe turns in her forthcoming Article, The Tax-Invisible Labor Program: Care, Work, Kinship, and Income Security Programs in the IRC. Gondwe advocates for greater recognition of nonmarket care work, in tax law and beyond.
The Article lies at the intersection of at least two literatures: on one hand, tax scholarship focused on the lives of those deemed poor and different (and often both) and on the other, scholarship on domestic workers that tries to understand how we value those who work intimately with humanity. Both literatures center household formation, household labor, gender, and race, all of which animate Gondwe’s Article.
October 14, 2022 in Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, October 7, 2022
This week, Sloan Speck (Colorado; Google Scholar) reviews new work by Rory Gillis (Western; Google Scholar), The Limits of Legal Substance: Tax Avoidance and Equitable Remedies After Collins Family Trust, 66 Can. Bus. L.J. __ (2022), and Amandeep S. Grewal (Iowa; Google Scholar), When Is the Economic Substance Doctrine “Relevant” to a Transaction? (Aug. 17, 2022).
According to a well-traveled adage among tax experts, United States tax law looks to economic substance over legal form—except when it doesn’t. In new work, Rory Gillis and Andy Grewal explore the complex dynamics between form and substance in two very different contexts: a recent Supreme Court of Canada decision that denies equitable remedies to tax-motivated transactions gone wrong, and the statutory interpretation issues that may arise from the IRS’s recent relaxation of internal procedures with respect to audit-level application of the economic substance doctrine. Both Gillis and Grewal emphasize the fundamental challenges faced by courts in implementing appropriate understandings of form and substance in taxation.
October 7, 2022 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, September 30, 2022
This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews a new work by Tatiana Falcão (international tax consultant), Updating Carbon Tax Policy Is Crucial to the EU Green Deal, 103 Tax Notes Int'l 485 (July 26, 2021).
The 2022 Congress of the International Fiscal Association (IFA) was held in Berlin, Germany, earlier this month after the two virtual Congresses in 2020 and 2021. In this long-awaited in-person event, the OECD's tax head Pascal Saint-Amans, who led the base erosion and profit shifting (BEPS) project and brokered the two-pillar global tax deal, announced his departure. Although the successful implementation of the global tax deal is still uncertain, it is hard to deny that Saint-Amans has been at the center of the efforts to update the international tax system. Personally, I appreciate his making the international tax a more exciting and dynamic subject, not only because he led the BEPS project and the global tax deal but also because he contributed to establishing the automatic exchange of tax information systems and building the inclusive framework on BEPS. It is indeed the end of a chapter in the international tax discourse.
September 30, 2022 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, September 23, 2022
This week, Michelle Layser (San Diego; Google Scholar) reviews Bridget J. Crawford (Pace; Google Scholar) & W. Edward Afield (Georgia State; Google Scholar), Yesterday’s Protestor May be Tomorrow’s Saint: Reimagining the Tax System Through the Work of Dorothy Day, 76 Tax L. Rev. __(2023).
Political protests have become more frequent in recent years, but tax protests are nothing new. The Tax Revolt of the 1970s may be fresh in memory, but people have been protesting taxation since the earliest days of the Christian church. In fact, first century tax protests against the Roman Empire were so frequent that Jesus himself is said to have weighed in on the issue, telling the Pharisees they should “render unto Caesar what belongs to Caesar and to God what belongs to God.” A simplistic reading of this passage might suggest a Christian moral imperative to pay taxes. But as Professors Bridget Crawford and W. Edward Afield remind us, at least one prominent Catholic figure disagreed. Dorothy Day, the founder of the Catholic Worker movement, made conscientious tax protest a central part of her religious practice, setting her on a path toward sainthood.
September 23, 2022 in Michelle Layser, Scholarship, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink
Friday, September 16, 2022
This week, Sloan Speck (Colorado; Google Scholar) reviews a new work by Michael Doran (Virginia; Google Scholar), Executive Compensation and Corporate Governance (Aug. 25, 2022).
Some say that the definition of insanity is doing the same thing repeatedly and expecting different results. In Executive Compensation and Corporate Governance, Michael Doran illustrates Congress’s tendency to meet this definition, especially in policy areas that implicate big business. Doran starts from the observation that, while significant empirical uncertainty exists as to whether lavish executive compensation reveals a breakdown of corporate governance, Congress’s extensive deployments of tax policy to curtail executive pay generally have fared poorly. Indeed, Doran argues that these legislative efforts, which span four decades, may have harmed shareholders and workers—the precise constituencies that Congress intended to protect.
September 16, 2022 in Scholarship, Sloan Speck, Tax, Tax Scholarship, Weekly SSRN Roundup, Weekly Tax Roundup | Permalink