Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews A Roadmap To NIL And Taxation By Narotzki & Brauner

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews a new work by Doron Narotzki (Akron; Google Scholar) and Yariv Brauner (Florida; Google Scholar), A Roadmap to NIL and Taxation, 14 Am. U. Bus. L. Rev. 1 (2024):

The evolution of collegiate sports has significantly shifted following the emergence of Name, Image, and Likeness (NIL) policies. It changed the structure and financial dynamics of collegiate sports to that of professional leagues such as the NFL, NBA, and MLB. It transformed student-athletes from non-earning amateurs into individuals capable of leveraging their personal brands for substantial financial gain. In this Article, Doron Narotzki and Yariv Brauner explore the multifaceted impact of these changes. They analyze the implications of NIL rights, particularly through the lens of taxation.  Their analysis offers a historical perspective, practical applications of NIL rights, and an exploration of the everyday tax implications. 

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Schaffa's Reimagining The Employee Compensation Deduction

This week, Michelle Layser (San Diego; Google Scholar) reviews Daniel Schaffa (Richmond; Google Scholar), Reimagining the Deduction for Employee Compensation, 57 Mich. J. L. Reform 417 (2024).

The deduction for employee compensation is among the most longstanding and least controversial deductions in the Tax Code. Unlike many deductions, which move the tax law away from a comprehensive tax base, the compensation deduction helps measure net income accurately. Perhaps for this reason, the treatment of employee wages has undergone few significant changes since the early years of the income tax. In a forthcoming article, Prof. Daniel Schaffa proposes a radical departure from the conventional approach. He reimagines the compensation deduction as an economic incentive for hiring and a subsidy for employee wages.

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Weekly SSRN Tax Article Review And Roundup: Kern Reviews Clausing's The Green Transformation And Tax Policy Criteria

This week, Adam Kern (San Diego; Google Scholar) reviews an article by Kimberly Clausing (UCLA), The Green Transformation and Tax Policy Criteria.

Climate change is an existential threat, and fiscal policy contains many of the tools for tackling it. But scholars of tax law have not given much attention to climate policy. (There are a few notable exceptions, including Reuven Avi-Yonah, Daniel Hemel, Mitchell Kane, Roberta Mann, Janet Milne, Tracey Roberts, Clint Wallace, and David Weisbach.) My sense is that many tax scholars shy away from climate policy because they see it as a daunting subfield that requires special technical knowledge.

In The Green Transformation and Tax Policy Criteria, Kimberly Clausing bridges this divide. She shows that traditional criteria for good tax policy—such as revenue, distribution, administrability, and efficiency—are at stake in climate policy as well.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Taxing The Wealthy At The State Level By Galle, Gamage & Shanske

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews a recent article by Brian D. Galle (Georgetown; Google Scholar), David Gamage (Missouri; Google Scholar), & Darien Shanske (UC-Davis; Google Scholar), Money Moves: Taxing the Wealthy at the State Level, 112 California L. Rev. __ (2025). 

While there are many tax reform proposals to tax the super-rich these days, the discussion has centered on the federal or national tax level. On the other hand, Brian Galle (Georgetown), David Gamage (Missouri), and Darien Shanske (UC Davis) have been brilliantly contributing to state-level tax policies to address inequality. A notable piece is Solving the Valuation Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. 1257 (2023, reviewed here), where the authors developed the unliquidated tax reserve accounts (ULTRA) system as a part of drafting comprehensive annual wealth tax reform proposal for the state of California. Recently, the authors produced another excellent piece on the state-level tax proposal for taxing the super-rich—Money Moves: Taxing the Wealthy at the State Level, 112 Calif. L. Rev. ___ (2025), which is worth introducing for this week's review.

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Weekly SSRN Tax Article Review And Roundup: Kern Reviews Deferring Income With Tiered And Circular Partnerships By Sanchirico & Shuldiner

This week, Adam Kern (San Diego; Google Scholar) reviews an article by Chris William Sanchirico (Penn; Google Scholar) and Reed Shuldiner (Penn), Deferring Income with Tiered and Circular Partnerships.

Taxes can be deferred when partnerships have different taxable years from their partners. A partnership might take account of its income in, say, January, while a partner might only take account of its income in December. In that case, the partner would defer taxes on its distributive share of partnership income for 11 months.

The academic literature has assumed that this opportunity for deferral is limited. In “Deferring Income with Tiered and Circular Partnerships,” Chris Sanchirico and Reed Shuldiner show that it is not. Taxpayers can achieve a large—indeed, unbounded—extent of deferral with tiered and circular partnerships. Moreover, while the partnership structures described by Sanchirico & Shuldiner are ingenious, they are not so large or complex as to be obviously infeasible. This is a genuine opportunity that taxpayers might well seize.

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Weekly SSRN Tax Article Review And Roundup: Narotzki Reviews Escajeda's Bad Tax Policy Breeds Bad Blood Between Songwriters And Poets

This week, Doron Narotzki (Akron; Google Scholar) reviews an article by Hilary G. Escajeda (Mississippi College; Google Scholar), Bad Tax Policy Breeds Bad Blood Between Songwriters and Poets 183 Tax Notes Fed. 1625 (May 27, 2024).

Escajeda offers a compelling and thought-provoking critique of the U.S. tax system's treatment of artists, an area that is not often discussed. With a lively and accessible writing style, Escajeda highlights an important but often overlooked disparity in how tax policy favors songwriters over poets. Using popular cultural references, such as Taylor Swift’s music, the article skillfully engages readers while discussing the more technical aspects of tax law which makes the topic relatable and easier to digest.

Escajeda’s main argument is clear and very persuasive: current U.S. tax laws offer preferential capital gains treatment to songwriters but at the same time subject poets and other non-musical artists to ordinary income tax rates. 

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Oei's Disentangling Power And Preferences In Tax Treaties Between Developing And OECD Countries

This week, David Elkins (Netanya, Google Scholar) reviews a new work by Shu-Yi Oei (Duke; Google Scholar), Disentangling Power and Preferences in Tax Treaties between Developing and OECD Countries Using Multilevel Modeling.

One of the linchpins of the international tax regime is the network of over 3,000 bilateral tax treaties. Of those, as noted by Prof. Oei, about 40% are between developed and developing countries. The primary goals of tax treaties are to prevent double taxation and to divide up taxing rights between the taxpayer’s country of residence (the home country) and the country from which the income is derived (the source country). However, it is often not necessary to conclude a tax treaty to prevent the taxation of the same income by more than one country. Foreign tax credits and territorial taxation are unilateral means by which counties can and do prevent double taxation. Moreover, these unilateral measures tend to give precedence to source countries. The question that has been raised in the literature is why developing countries, which to a great extent rely upon source taxation, would enter into treaties, the effect of which is to limit their ability to tax income deriving from their own territory.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Shanske's The Future Of SALT

This week, Michelle Layser (San Diego; Google Scholar) reviews Darien Shanske (UC-Davis; Google Scholar), The Future of SALT (?): Using and Improving Formulas for Apportioning Income, Residence and Intangibles, 78 Tax Law. __ (2025). 

Formulas are a common feature of state tax law. The quintessential example is the formulary apportionment of income earned by multistate corporations, but formulas are used in other contexts as well. Some states use formulas to determine how individuals should apportion their income when they work remotely. Formulas are used to apportion income earned by professional athletes (let’s go Padres!). Emerging digital sales tax laws use formulas to apportion advertising income earned by platforms like Facebook to the states where their customers live.

Formulas help solve a fundamental problem: it is often theoretically and practically impossible to determine, with absolute accuracy, where a taxpayer earned their income. Formulas provide a simple solution: estimate how much income was earned in a state based on proxies (like the location of customers, employees, or property) or time (the number of days an employee worked in each state). 

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Weekly SSRN Tax Article Review And Roundup: Narotzki Reviews Utke's There Is No Carried Interest Loophole

This week, Doron Narotzki (Akron; Google Scholar) reviews Steve Utke (Connecticut; Google Scholar), There is No Carried Interest Loophole.

Steven Utke's paper presents a unique argument against the widespread criticism of the tax treatment of carried interest. Commonly referred to by many (including myself) as a "loophole," carried interest essentially allows private equity (“PE”) and hedge fund managers to lower their tax liability and pay taxes at long-term capital gains rates rather than higher ordinary income rates. Utke challenges this criticism, providing a comprehensive analysis that supports the current tax treatment mainly as both consistent with tax principles and beneficial for federal revenue.

Utke's paper makes three core arguments to support his claim: consistency with tax principles, revenue implications, and the consequences of changing the current tax treatment.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Competing Narratives On OIRA Review Of Tax Regulations By Hickman & Dooling

This week, Blaine Saito (Ohio State; Google Scholar) reviews a new work by Kristin E. Hickman (Minnesota; Google Scholar) & Bridget C.E. Dooling (Ohio State; Google Scholar), Competing Narratives in OIRA Review of Tax Regulations, 19 J.L. Econ. & Pol’y __ (2024):

In 2023, the Biden Administration issued a Memorandum of Agreement (MOA) that exempted all tax regulations from OIRA review. Many, including readers of this blog, hailed this undoing. But in Competing Narratives on OIRA Review of Tax Regulations, Kristine E. Hickman and Bridget C.E. Dooling show that what is at play are two competing narratives. One sees OIRA review as salutary and creating greater transparency, accountability, and rigorous analysis. The other views it as meddlesome to tax regulations. They show that the second narrative stems from some key misconceptions about OIRA review of tax regulations.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Cowing's Equity And Ownership In Affordable Housing

This week, Michelle Layser (San Diego; Google Scholar) reviews Adam Cowing (UC-Irvine), Equity and Ownership in Affordable Housing, 2024 U. Ill. L. Rev. 399.

In the U.S., homeownership is often essential for wealth building. For middle-income households, “home equity is the largest single financial asset,” and it accounts for 50-70% of net wealth. In 2022, the wealth gap between homeowners and renters reached a historic high, as the median wealth of homeowners rose to $85,000 and the median wealth of renters remained stable at $950. Tax-based homeownership subsidies are common (the mortgage interest deduction is one, and the exclusion of imputed rent is another), but none aim to make home ownership attainable for low-income families. Instead, tax subsidies like the Low-Income Housing Tax (LIHTC) credit (and proposed renters’ tax credits) have focused on providing affordable rental housing. Nevertheless, a new article by Professor Adam Cowing argues that the LIHTC has untapped potential to transform low-income tenants into homeowners.

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews The Missing “T” in ESG By Chaim & Parchomovsky

This week, Tracey M. Roberts (Cumberland; Google Scholar) reviews a new work by Danielle A. Chaim (Bar-Ilan; Google Scholar) and Gideon Parchomovsky (Penn; Google Scholar), The Missing “T” in ESG, 77 Vanderbilt L. Rev. 789 (2024).

In The Missing T in ESG, Danielle Chaim and Gideon Parchomovsky take a magnifying glass to ESG investing and the large asset management firms that have been promoting it in recent years. Environmental Social and Governance or “ESG” standards describe a broad array of criteria. Environmental factors examine environmental impacts (such as waste management and greenhouse gas production). Social factors focus on human rights violations and violations of labor laws (such as human trafficking and child labor in the supply chains), among other things. Governance factors consider longer-term value, positive and negative spillover effects, and whether a corporation has implemented structures and personnel with diverse perspectives to avoid the kinds of group-think that led to the mortgage crisis and Great Recession. Ultimately, ESG ratings allow investors, with an aversion to longer-term risks and with preferences beyond short term profit, to pick and choose where they invest their money.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Raskolnikov's Law For The Rich

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews a recent paper by Alex Raskolnikov (Columbia), Law for the Rich, 109 Minn. L. Rev. __ (2024).

With respect to the heated debate on introducing higher, more effective taxes on the rich, like a wealth tax, Alex Raskolnikov (Columbia) asks a provocative question in his recent essay, Law for the Rich, 109 Minn. L. Rev. (forthcoming 2024)—why not  propose legal reforms to expand the scope beyond tax law and introduce a separate general (non-tax) law for the rich, encompassing property law, contract law, corporate law, antitrust law, IP law, labor law, and so on (collectively, the Law for the Rich (LFR))?

Raskolnikov explains that although there is no such LFR, it is possible to envisage a practicable one and implement it. For example, in property law, "time limits can be shortened or lengthened if the negatively affected party happens to be the rich."

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Efficiency vs. Welfare In Benefit-Cost Analysis — The Case Of Government Funding By Liscow & Sunstein

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Zachary D. Liscow (Yale; Google Scholar) & Cass R. Sunstein (Harvard; Google Scholar), Efficiency vs. Welfare in Benefit-Cost Analysis: The Case of Government Funding, 15 J. Benefit-Cost Analysis ___ (2024).

Benefit-Cost Analysis (“BCA”) is a methodical approach to assessing the economic advantages and disadvantages of different options that fulfill transactions, activities, or functional needs for businesses or individuals. Whether we are aware of it or not, we widely employ this method in everyday life as a tool for making decisions when assessing the viability of a project and comparing its strengths and weaknesses. Whether it is investing in higher education, buying a new appliance, or implementing a new business strategy, BCA enables us to evaluate the financial and practical consequences of our choices and efficiently optimize the allocation of our resources.

This Article critically examines the use of BCA in government funding decisions, particularly focusing on how its application has evolved to incorporate concerns for social welfare and equity.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Kern’s Progressive Taxation For The World

This week, Blaine Saito (Ohio State; Google Scholar) reviews a new work by Adam Kern (NYU), Progressive Taxation for the World, 74 Tax L. Rev. __ (2024): 

A growing set of voices in tax scholarship are seeking to reemphasize notions of justice. But one of the areas where many of these discussions have traditionally faltered is in the area of international taxation. Many commentators argue that justice really can only happen within a given state and society, not across the world. In his piece, Progressive Taxation for the World, Adam Kern seeks to rebut these ideas, showing that when countries act in the international tax arena to grab more taxing rights for themselves, the justice claims of the poorest countries are actually heightened. He also urges for notions of international taxation where needs of people are given a greater place than economic contributions of a given jurisdiction. The piece forces us to grapple with why we continue then to ignore such claims in our thinking and policymaking.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Tahk's The Tax Separation Of Powers

This week, Michelle Layser (San Diego; Google Scholar) reviews Susannah Camic Tahk (Wisconsin), The Tax Separation of Powers.

The economic development tax incentives that I study rarely appear in Tax Court cases. Instead, they tend to be the subject of legislative activity. Congress amends laws like the low-income housing tax credit and new markets tax credit to adjust program size, extend deadlines, and tweak eligibility requirements. Legislators debate whether incentives like opportunity zones are helpful social and economic policy tools or wasteful giveaways. Every so often, a case will reference an economic development incentive, but it’s unusual. I had no idea that this was part of a larger trend. In a new article, Professor Susannah Camic Tahk argues that the Code sections the Tax Court reviews (the “judicial Code”) and those that receive attention from Congress (the “legislative Code”) have so little overlap that they constitute a substantive divide in the separation of powers. 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Brauner's Taxing People, Not Residents

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Yariv Brauner (Florida, Google Scholar), Taxing People, Not Residents:

The COVID-19 pandemic has really shaken things up in the workplace, causing us to take a closer look at how we handle taxation based on where people live. I discovered that job mobility, both domestic and international, has similar tax ramifications after my family relocated to Atlanta, GA, and I still commute to Tuscaloosa, AL, to teach at the University of Alabama. I also learned that it is not uncommon to hear about people like me who have moved without changing jobs. Indeed, the location of an employee in a state may result in the taxable presence (and taxation) of the employer in that state pursuant to its business tax laws, thus requiring complex reporting adjustments. Nevertheless, such developments in individuals’ mobility at the international level, as this Article demonstrates, may put increased pressure on international tax policy stances as well as the legitimacy of their residence taxations.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Dagan’s Tax and Globalization: Toward a New Social Contract

This week, Blaine Saito (Ohio State; Google Scholar) reviews a new work by Tsilly Dagan (Oxford; Google Scholar), Tax and Globalization: Toward a New Social Contract: 

Political theory has often struggled in trying to determine what justice requires across the borders of nation-states. In her piece Tax and Globalization: Toward a New Social Contract, Tsilly Dagan addresses these thorny issues in the context of taxation. In doing so, she shows that one of the great difficulties that tax, and indeed all areas of law, face under globalization, is to ensure that people’s liberties to leave political communities are balanced carefully with the needs of justice for those who are not so mobile. In doing so, she provides a framework for us to think about what justice and social contract theories demand in a globalized world.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Taxing Nannies By Kleiman, Sarkar & Satterthwaite

This week, Michelle Layser (San Diego; Google Scholar) reviews Ariel Jurow Kleiman (Loyola), Shayak Sarkar (UC Davis) & Emily Satterthwaite (Georgetown), Taxing Nannies: 

Nannies play an important role in the childcare system, helping many moderate-to-high income women pursue careers in fields like business, medicine, law, and politics. Research on the tax behavior of parent-hirers of nannies has raised significant concerns about noncompliance, and it would be easy to conclude that most nannies (and the parents they work for) prefer to keep their payments “under the table.” A new study by Professors Ariel Jurow Kleiman, Shayak Sarkar, and Emily Satterthwaite suggests that the tax reporting preferences of nannies and their employers are considerably more nuanced. While many nannies do prefer to receive pay under the table, others prefer formal employee status. The authors argue that understanding these preferences—and the reasons behind them—is key to crafting effective and equitable nanny tax reforms.

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews New Articles On Moore v. United States By Avi-Yonah & Clarke

This week, Tracey M. Roberts (Cumberland; Google Scholar) reviews new works by Conor Clarke (Washington University; Google Scholar), Moore: The Overlooked Excise Power, 181 Tax Notes Fed. 1759 (Dec. 4, 2023) and Reuven Avi-Yonah (Michigan; Google Scholar), Effects from Moore: Does the Corporate Tax Require Realization, 182 Tax Notes Fed. 661 (Jan. 22, 2024).

A tax case on an obscure provision in the Tax Cuts and Jobs Act has captured the attention not only of tax specialists, but the broader public. Rightly so. If decided in favor of the Moores, it could be the most consequential decision since Citizens United v. Federal Election Commission, which held that the freedom of speech clause of the First Amendment prohibits the government from restricting corporate expenditures for political campaigns. In Moore v. United States, the Moores take issue with the Mandatory Repatriation Tax (or “MRT”) set forth in I.R.C. section 965. The MRT is a one-time tax levied on the undistributed earnings and profits of specified foreign corporations dating from 1986, when Congress enacted provisions that shielded those earnings from taxation. Following Congress’s repeal of those provisions and the addition of the MRT under the Tax Cuts and Jobs Act, the MRT would tax that income, at a lower rate, to the shareholders whose holdings exceed a 10 percent threshold. 

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Delmotte's Predistribution Against Rent-Seeking — The Benefit Principle’s Alternative To Redistributive Taxation

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Charles Delmotte (Michigan State, Google Scholar), Predistribution Against Rent-Seeking: The Benefit Principle’s Alternative to Redistributive Taxation, 39 Soc. Phil. & Pol’y 1 (2023).

Taxation has several goals. The most obvious goal is to raise revenue for necessary government functions. A more controversial goal of taxation is a redistributive function to reduce the unequal distribution of income and wealth. Different theories of distributive justice endorse or oppose the legitimacy and/or effectiveness of the redistributive goal of taxation. In his recent article, Predistribution Against Rent-Seeking: The Benefit Principle’s Alternative to Redistributive Taxation, 39 Soc. Phil. & Pol’y 1 (2023), Charles Delmotte (Michigan State, Google Scholar) questions the redistributive goal of taxation and offers an alternative approach based on the benefit principle. The benefit principle means that “specific rules and institutions are acceptable to the extent that they create benefits for all individuals in society, or at least don’t make anyone worse off.” 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Hemel's Phaseouts

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Daniel J. Hemel (NYU; Google Scholar), Phaseouts, 74 Tax L. Rev. __ (2024) (reviewed by Sloan Speck (Colorado; Google Scholar) here)

Phaseouts are federal tax benefits that decrease with income. They are used for health insurance, higher education, and retirement savings tax breaks. As income rises, tax breaks such as the child tax credit, earned income tax credit, deduction for traditional individual retirement plan contributions, and student loan interest deduction decrease. Individuals earning less than a certain income threshold receive the full benefit, while those earning more than that threshold are ineligible for benefits. Taxpayers with incomes in the range may claim partial benefits that decrease with income. Other federal income tax benefits, such as medical expenses and personal casualty loss deductions, have implicit phaseouts (though they appear as income-based "floors").

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Eyal-Cohen's Tax Incentives For Investment Crowdfunding

This week, David Elkins (Netanya; Google Scholar) reviews Mirit Eyal-Cohen (Alabama; Google Scholar), Tax Incentives for Investment Crowdfunding: A Comparative Analysis, 23 Colo. Tech. L. J. __ (2024).

Crowdfunding is a widely used method for individuals to raise funds, whether it be for a charitable purpose, a business, or a specific event. As online crowdfunding campaigns have become more common, questions arise regarding the role that tax law has to play in that phenomenon. For example, when the underlying motivation is primarily donative, questions arise as to whether the transfer is income to the recipient or provides a charitable deduction to the donor.

In this week’s feature article, Prof. Eyal-Cohen examines investment crowdfunding, which involves companies offering common stock, convertible debt, tokens, coins, or other assets to the general public using the internet. The questions that she raises are descriptive (how traditional rules of tax law are to be applied to this relatively new phenomenon), normative (whether Congress should encourage investment crowdfunding by means of tax incentives), and administrative (how to clarify the tax consequences for the participant in various crowdfunding initiatives).

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Circular Partnerships By Sanchirico & Shuldiner

This week, Sloan Speck (Colorado; Google Scholar) reviews Chris William Sanchirico (Penn; Google Scholar) & Reed Shuldiner (Penn), Circular Partnerships.

The current crisis in partnership tax enforcement is simultaneously well-established and difficult to define. Notwithstanding new tools (such as the centralized partnership audit regime), new funding (principally from the Inflation Reduction Act), and new initiatives (to audit certain very large partnerships using—as is au courant—artificial intelligence), the precise problems with tax partnerships, as deployed by sophisticated taxpayers and their advisors, remain relatively inchoate. In Circular Partnerships, Chris William Sanchirico and Reed Shuldiner deconstruct the emergent political and scholarly narrative surrounding tiered partnership structures with hook interests that may recursively cycle income earned by a parent partnership back through a subsidiary, possibly without end. Sanchirico and Shuldiner conclude that the problem of “trapped income” in partnership cycles, while difficult to untangle, almost certainly is overstated in current debates. Furthermore, Sanchirico and Shuldiner identify compliance issues inherent in circular partnerships, as well as opportunities for reform to more effectively target income that passes through partnership cycles.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Bearer-Friend’s Paying For Reparations

This week, Blaine Saito (Ohio State; Google Scholar) reviews a new work by Jeremy Bearer-Friend (George Washington; Google Scholar), Paying for Reparations: How to Capitalize a Multi-Trillion Reparations Fund, 67 How. L.J. __ (2024).

Even well-meaning liberals who support the idea in concept find reparations for slavery a difficult issue because question where we would get the money. The costs of paying the descendants of those enslaved, even on a conservative estimate, stems in the trillions of dollars. In his piece, Paying for Reparations, Jeremy Bearer-Friend proposes a novel solution; we can pay for it through a proportionate equity share of large businesses in the U.S. The piece builds on his prior work on in-kind taxation. The article produces a thoughtful outline toward quickly capitalizing a trillion-dollar reparation fund.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Cui’s The Mirage Of Mobile Capital

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Wei Cui (British Columbia; Google Scholar), The Mirage of Mobile Capital (May 7, 2023).

Over two years have passed since more than 140 countries signed the OECD's global tax deal, consisting of two Pillars, in October 2021. Pillar One is focused on expanding source country taxing rights on the income of large multinational enterprises (MNEs). It targets digital companies such as Facebook or Google that can extract profits from a source jurisdiction without a physical presence. The implementation of Pillar One remains uncertain. Nonetheless, the global minimum tax in Pillar Two is expected to be implemented globally soon. A popular narrative about Pillar Two endorsed by many scholars, including myself here, is as follows: Pillar Two and its global minimum tax embrace the ideal of corporate tax harmonization to combat the tax competition that has dominated international taxation since the advent of globalization in the 1980s. 

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews The 16th Amendment And Congress’s Income Tax Power By Brooks & Gamage

This week, David Elkins (Netanya; Google Scholar) reviews John R. Brooks (Fordham; Google Scholar) & David Gamage (Indiana-Maurer; Google Scholar), “From Whatever Source Derived”: The Sixteenth Amendment and Congress’s Income Tax Power (2023). 

On June 26, 2023, the Supreme Court granted certiorari in Moore v. United States. With the exception of National Federation of Independent Business v. Sebelius (2012) (which upheld the Affordable Care Act and in the which the question of whether it was indeed a tax case was the key to the decision), it would be difficult to cite a tax case in the last century that can compete with the potential impact of Moore. Petitioners argue that Congress does not have the constitutional authority to tax unrealized gain. A broadly worded decision accepting that argument could invalidate large portions of the Internal Revenue Code, in addition to stymying efforts to impose a wealth tax or a tax on unrealized appreciation.

The familiar story is that the Constitution distinguishes between direct taxes and indirect taxes (although as Profs. Brooks and Gamage point out, the Constitution does not use the term “indirect tax,” instead referring to taxes that are not direct as “duties, imposts, and excises”).

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Avi-Yonah's DSTs, Pillar One, And The Multilateral Tax Project

This week, Sloan Speck (Colorado; Google Scholar) reviews new works by Reuven Avi-Yonah (Michigan; Google Scholar) & Eran Lempert (Erdinast, Ben Nathan & Toledano, Israel), The Historical Origins and Current Prospects of the Multilateral Tax Convention, 15 World Tax J. 379 (2023).. 

Half of the BEPS 2.0 project stands on the precipice. As Reuven Avi-Yonah argues in a forthcoming article in Tax Notes, the multilateral convention to implement Pillar One is likely to fail. The United States must ratify the convention for it to take effect, and this outcome seems remote, given the United States’ historical behavior and current politics. Moreover, Canada threatens to end the OECD moratorium on digital services taxes (DSTs) in January 2024, and the United States may retaliate. The problem, however, isn’t clearly about DSTs, or trade wars, or Pillar One’s redistributive aims. Instead, as Avi-Yonah and Eran Lempert elaborate in a longer article in the World Tax Journal, the multilateral vehicle itself hinders the adoption of Pillar One.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews The 16th Amendment And Congress’s Income Tax Power By Brooks & Gamage

This week, Blaine Saito (Ohio State; Google Scholar) reviews a new work by John R. Brooks (Fordham; Google Scholar) & David Gamage (Indiana-Maurer; Google Scholar), “From Whatever Source Derived”: The Sixteenth Amendment and Congress’s Income Tax Power:

Like many of our readers, I am following the Supreme Court case of Moore v. United States. In their piece “From Whatever Source Derived”: The Sixteenth Amendment and Congress’s Income Tax Power, John R. Brooks and David Gamage makes a series of compelling arguments. First, the piece shows that the original understanding of the Sixteenth Amendment allowed for an income tax that included potential taxes on unrealized gains. They unearth new evidence in support of this view. Second, the piece argues that in light of Eisner v. Macomber, the Sixteenth Amendment has three potential views on “taxes on income”: “(1) the realization-based conception, (2) the presumptive-measurement conception, and (3) the economic-gains conception.” They show that under almost any conception, except for the economic-gains conception, a wealth tax could arise. Instead, the main result of the realization-based conception that the Moore petitioners advocate is to introduce chaos.

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Reexamining Triangular B Reorganizations By Narotzki & Shanan

This week, Mirit Eyal-Cohen (Alabama; Google Scholar) reviews Doron Narotzki (Akron; Google Scholar) & Tamir Shanan (College of Management; Google Scholar), Reexamining Triangular B Reorganization: Requirements and Potential Tax Traps or a Time to Revisit Its Favorable Application, 24 U.C. Davis Bus. L.J. __ (2024).

This week, when it was my turn to review new SSRN scholarship, I never expected to do so with such a broken heart. How can one function after witnessing videos taken of infants, children, and women being murdered, incinerated alive, kidnapped, and mutilated? Sadly, while we cannot do much from a distance to mitigate such abhorrent cruelty, I am confident that the Authors  of the aforementioned article (and others with families in Israel) will appreciate the TaxProf Blog community's prayers and words of consolation during these trying times. Thank you in advance for your support. And now, sigh, back to this week’s SSRN Roundup.    

One of the most frequently used schemes for tax-free reorganizations, which the vast majority of scholars and tax practitioners intuitively believe to be justified, is the Triangular B Reorganization. 

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Hemel's The Low And High Stakes Of Moore

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Daniel Hemel (NYU; Google Scholar), The Low and High Stakes of Moore, 180 Tax Notes Fed. 563 (July 24, 2023).  

Everybody in the tax community talks about, or at least pays attention to, Moore—the mandatory repatriation tax (MRT) case that the Supreme Court will hear in coming months. I think there is at least one tax event a week on Moore these days. Among the overflowing write-ups, I chose Daniel Hemel (NYU; Google Scholar)'s recent article, The Low and High Stakes of Moore, 180 Tax Notes Fed. 563 (July 24, 2023), for this week's review. It is a concise yet remarkably insightful article that contains everything you need to think about Moore. 

The tax challenged is the MRT introduced by the Tax Cuts and Jobs Act (TCJA). The MRT requires the U.S. shareholders who own at least 10% of a Controlled Foreign Corporation (CFC) to pay a one-time tax on the undistributed earnings and profits of the CFC dating back to the end of 1986. 

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Tax And The Boundaries Of The Firm By Barry & Fleischer

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.

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Morgan's Measuring Wealth Under A Wealth Tax

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.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Hemel's Phaseouts

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.

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Sarkar’s Internal Revenue’s External Borders

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.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Zhang’s Eisner v. Macomber And The Future Of The Realization Requirement

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.

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Parsons' Taxing Taxonomies

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 of 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. 

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Yin’s The Supreme Court’s Misinterpretation Of The FBAR Statute

This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) 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. 

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Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Nissim's Normal Tax Rate

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. 

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Weekly SSRN Tax Article Review And Roundup: Elkins Reviews The Use And Abuse Of Location-Specific Rent By Kane & Kern

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. 

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews Claussen's Tax Intelligence

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).

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Wallace’s A Democratic Perspective On Tax Law

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.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Moore v. United States And The Original Meaning Of Income By Brooks & Gamage

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. 

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Gift Tax Consequences Of Luxury Hospitality By Crawford, Haneman & Blattmachr

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.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews Crypto Losses By Nguyen & Maine

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.

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Weekly SSRN Tax Article Review And Roundup: Speck Reviews A Critical Evaluation Of The Qualified Small Business Stock Exclusion By Polsky & Yale

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. 

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Weekly SSRN Tax Article Review And Roundup: Saito Reviews Automated Agencies By Blank & Osofsky

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.

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Weekly SSRN Tax Article Review And Roundup: Layser Reviews Predictive Analytics And The Tax Code By Soled & Thomas

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. 

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Weekly SSRN Tax Article Review And Roundup: Roberts Reviews Clausing’s Capital Taxation And Market Power

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.

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Weekly SSRN Tax Article Review And Roundup: Kim Reviews The Internet Tax Freedom Act At 25 By Hellerstein & Appleby

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. 

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