Digital Commons Network^™

Electronic Tax Fraud - Are There 'Sales Zappers' In Japan?, Richard Thompson Ainsworth

Faculty Scholarship

Although there is no public acknowledgement - in the press, in a court case, though any announcement by the Japanese National Tax Administration, or in any academic studies or papers - that Zappers and Phantom-ware are a fraud problem in Japan, a number of factors suggest that Japan may be very fertile ground for technology-assisted cash skimming fraud. Those factors include: (1) a high concentration of small to medium sized businesses; (2) the fact that the retail economy is highly cash-based; and (3) the high level of technology acceptance in the Japanese retail sector - electronic cash registers (ECRs) and …

Zappers And Phantom-Ware At The Fta: Are They Listening Now?, Richard Thompson Ainsworth

Faculty Scholarship

When the Federation of Tax Administrators (FTA) held a national Compliance and Education Workshop in Louisville, Kentucky (February 25-27, 2001) one of the invited speakers was Kevin Pratt, Manager, Underground Economy, Canadian Customs and Revenue Authority (CCRA). He spoke on Zappers.

To the best of anyone's present recollection, this was the first time zappers had been discussed with a large group of state-level US tax compliance professionals. However, most of the information that the CCRA presented to the FTA in 2001 was not its own - it was derivative. Zapper investigations were not an in-house specialty of the CCRA (although …

Mtic (Carousel) Fraud: Twelve Ways Forward; Two Ways 'Preferred' - Has The Technology-Based Administrative Solution Been Rejected?, Richard Thompson Ainsworth

Faculty Scholarship

In a May 31, 2006 Communication to the Council, the European Parliament, and the European Economic and Social Committee, the European Commission indicated a need to develop a co-ordinated strategy to improve the fight against fiscal fraud [COM(2006) 254 final]. Although the Communication considers fiscal fraud broadly (VAT, excise duties and direct taxes) the most pressing need seems to be for a VAT strategy that will effectively deal with MTIC (Missing Trader Intra-Community) or carousel fraud. To this end the Commission hosted a conference: Fiscal Fraud - Tackling VAT Fraud: Possible Ways Forward. The March 29, 2007 conference was constructed …

Zappers: Tax Fraud, Technology And Terrorist Funding, Richard Thompson Ainsworth

Faculty Scholarship

"Zappers," or automated sales suppression devices, have brought unheard of efficiencies and economies of scale to a very simple tax fraud - skimming cash sales at point of sale (POS) terminals (electronic cash registers). Until recently the largest tax fraud case in Connecticut, also the "largest computer driven tax-evasion case in the nation," was a zapper case. Stew Leonard's Dairy in Norwalk Connecticut skimmed $17 million in receipts and hid the cash in St. Martin (a Caribbean island). Talal Chahine and his wife, Elfat El Aouar, owners of the La Shish restaurant chain in Detroit Michigan have the dubious honor …

It-Apas - Vertical Harmonization Of Transfer - Pricing Standards, Richard Thompson Ainsworth

Faculty Scholarship

The World Customs Organization (WCO) and the Organization of Economic Cooperation and Development (OECD) have begun considering the harmonization of transfer pricing norms among income tax, customs and VAT regimes. Two conferences have been organized in May of 2006 and 2007.

These conferences have concluded so far: (a) that more analysis is needed; (b) that harmonization will require adjustments on all sides; and (c) that pilot projects (real world statutory and administrative efforts to harmonize) or case studies in harmonization (hypothetical fact patterns) are needed to facilitate consideration. This paper assesses the three basic paths being pursued at the present …

Torture And Islamic Law, Sadiq Reza

Faculty Scholarship

This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves "Islamic states." The status of …

The Arbitrator's Jurisdiction To Determine Jurisdiction, William W. Park

Faculty Scholarship

The disorienting effect of language finds illustration in the principle that arbitrators may rule on their own authority. Often expressed as Kompetenz-Kompetenz (literally “jurisdiction on jurisdiction”), the precept has been applied to questions such as who must arbitrate, what must be arbitrated, and which powers arbitrators may exercise. This much-vexed principle possesses a chameleon-like quality that changes color according to the national and institutional background of its application. Moreover, the basic rule that arbitrators may decide on their own jurisdiction says nothing about who (judge or arbitrator) ultimately decides a particular case. Rather, the rule states only that the question …

Criminal Performances: Film, Autobiography, And Confession, Jessica Silbey

Faculty Scholarship

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness …

Human Rights Outlaws: Nuremberg, Geneva, And The Global War On Terror, George J. Annas

Faculty Scholarship

International human rights law was born from the ashes of World War II. The most important post-World War II products are the United Nations, the Nuremberg Trials, the Universal Declaration of Human Rights, and the Geneva Conventions of 1949. But that was not the end of the story. International human rights law continued to develop and expand right up to September 11,2001, most notably through the adoption of the International Covenant on Civil and Political Rights2 and the Convention Against Torture, 3 and the establishment of the International Criminal Court.4 With the exception of the criminal court, the United States …

Biometrics, Certified Software Solutions, And The Japanese Consumption Tax: A Proposal For The Tax Commission, Richard Thompson Ainsworth

Faculty Scholarship

Significant change is anticipated in the Japanese Consumption Tax. The Japanese Tax Commission is recommending that the rate should double, multiple rates should be employed, and the "bookkeeping method" of accounting should be abandoned in favor of the European "invoice method."

The Tax Commission faces a tax policy dilemma. The aging population drives the need for a tax increase (making the Consumption Tax an obvious target for revenue enhancement) at exactly the same time the population is shrinking in overall size, thereby reducing the number of working-consumers who can pay the higher tax.

These are dramatic changes for the Japanese …

Digital Consumption Tax (D-Ct), Richard Thompson Ainsworth

Faculty Scholarship

Modern technology is dramatically changing the way consumption taxes are collected, but it is also changing the way policymakers assess the operation and impact of these taxes. Whether the design is a standard credit-invoice value added tax (VAT) of European design, or a retail sales tax (RST) of American design, or the credit subtraction VAT without invoices type of consumption tax (CT) of Japanese design, technology is having a profound impact.

Government certified transaction software is in place in the United States. The Streamlined Sales Tax offers taxpayers in 18 states the option of having their retail sales tax determined …

The Digital Vat (D-Vat), Richard Thompson Ainsworth

Faculty Scholarship

The most sustained U.S. tax policy debate of the past 30 years concerns proposals to replace and/ or supplement the Federal Income Tax with a consumption tax. Public finance economists and legal tax policy scholars challenged and defended the current income tax system on grounds of fairness, efficiency, and simplicity.

This debate over revamping the national taxing scheme has not been argued purely in the academic forum. Concrete legislative proposals have been advanced for a national retail sales tax, a European-style Value Added Tax, as well as a whole host of what David Bradford calls "the two-tiered consumption taxes."

From …

Consolidating Pharmaceutical Regulation Down Under: Policy Options And Practical Realities, Frances H. Miller

Faculty Scholarship

Pharmaceutical regulatory agencies struggle worldwide to maintain public trust these days. Drug safety issues proliferate,' the costs of lharmaceuticals take increasingly larger shares of most countries' health service spending, and conflicts of interest afflicting the drug approval and marketing processes capture more and more public attention. The Australian and New Zealand governments are keenly aware of these problems, and have been attempting to forge a regulatory alliance to combine their respective pharmaceutical regulatory agencies, Australia's Therapeutic Goods Administration (TGA) and New Zealand's Medicines and Medical Devices Safety Authority (Medsafe), into the pending Trans Tasman Therapeutic Products Authority (ANZTPA, or TPA). …

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Faculty Scholarship

What is “transnational” criminal law? One possibility is foreign criminal law, meaning the scope and substance of what is deemed criminal behavior in other lands and the theories that ostensibly justify punishing for such behavior, indeed deeming it criminal in the first place. Another is foreign criminal procedure, the “how” of foreign criminal law’s “what” and “why”: the rules and practices of investigating crime, prosecuting suspected criminals, and adjudicating criminal cases in other lands or systems. More common meanings, judging from articles in U.S. law reviews, are comparative criminal law and comparative criminal procedure, though these might differ from their …

Kitzmiller And The "Is It Science?" Question, Jay D. Wexler

Faculty Scholarship

When Judge John E. Jones, III, a United States District Court judge appointed by President George W. Bush, ruled that the Dover school board's intelligent design (ID) policy violated the Establishment Clause, ID opponents were ecstatic. They had good reason to be. The opinion was a comprehensive and complete victory for ID opponents. The decision held that the policy was an unconstitutional endorsement of religion when viewed both from a reasonable Dover student's perspective as well as from the perspective of a reasonable adult in the Dover community. It also held that the policy was adopted for a religious purpose, …

Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp

Faculty Scholarship

The objection to citation of foreign law in U.S. Supreme Court decisions is bad history and bad law. First, let me briefly review how the objection has come to prominence recently. On June 26, 2003, the U.S. Supreme Court decided Lawrence v. Texas, striking down a same-sex sodomy statute. Justice Antonin Scalia, in the course of his dissenting opinion, wrote that the majority's citation of foreign law was "meaningless dicta," "[d]angerous dicta."' He added that the majority's opinion was "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

Lochner In Europe: A Comment On Keith Whittington's Congress Before The Lochner Court Symposium: Lochner Centennial Conference, Daniela Caruso

Faculty Scholarship

In 1904, St. Louis, Missouri was the place to go. In conjunction with its spectacular world's fair, the city also hosted the Universal Congress of Lawyers and Jurists, known in academic circles as the foundational event of American comparative law.1 Within a big screen entirely devoted to the Lochner2 centennial, this comment aims at opening a window on another centennial - the hundredth anniversary of comparative law in the United States.Though inspired by the Universal Congress, this comment does not partake in the celebratory spirit of anniversaries.3 Far from espousing a romanticized or universalist conception of comparative law, these pages …

The One-Stop-Shop In Vat And Rst: Common Approaches To Eu-Us Consumption Tax Problems, Richard Thompson Ainsworth

Faculty Scholarship

In March 2004 the European Commission solicited comments on a proposal to simplify value added tax (VAT) obligations through a one-stop scheme. The proposal was modest in scope. It was designed to build upon the success of a similar scheme that dealt with non-EU established persons supplying digital products to non-taxable EU persons. That scheme is found in Article 26c of the Sixth VAT Directive.

In its March Consultation Paper the Commission proposed that businesses established within the EU be allowed to participate in a one-stop scheme that would be similar to the Article 26c scheme. Limited to B2C transactions, …

A Comparative Assessment Of Eu, Uk, French, Australian And Japanese Responses To Auditor Independence: The Case Of Non-Audit Tax Services, Richard Thompson Ainsworth

Faculty Scholarship

Auditor independence was a global concern of financial regulators in the 1990's. Some observers saw this in a positive light, a natural development. Adjusting auditor independence rules was a manifestation of global convergence in corporate governance structures. New rules, especially rules leaning toward a harmonized system were welcome.

There was a more sobering view. This view held that global regulators were less concerned with convergence than they were with a sense of impending disaster. Things had gone too far. Significant, maybe even radical change was needed. The independence of corporate auditors had eroded; trust had been fundamentally compromised in the …

Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso

Faculty Scholarship

In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those ‘public’ matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States’ property systems, restated both in the TEC and in the draft Constitution, cannot be …

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …

A "Jewish State ... To Be Known As The State Of Israel": Notes On Israeli Legal Historiography, Pnina Lahav

Faculty Scholarship

Israeli legal history is a discipline much younger than the history of its fifty-three-year-old state. It began developing in the 1980s and gained momentum in the late 1990s. ³ In the entire state with its four major law schools and several law colleges⁴ only five scholars consider legal history to be their main field of expertise. ⁵ And yet, Israeli legal history has proven to be an extremely exciting intellectual discipline, attracting many more scholars than these five. Asher Maoz and Leora Bilsky are only two of a growing number who find legal history an intellectually stimulating enterprise. The …

The Art And Science Of Critical Scholarship: Postmodernism And International Style In The Legal Architecture Of Europe, Anna Di Robilant, Ugo Mattei

Faculty Scholarship

This Article is a critique of several contemporary modes of thought in European legal scholarship. It intends to shed light on some interesting phenomena within legal ideology. Removing a legal ideology from its original context and applying it to a new situation can transform its meaning. For example, a progressive movement born in the United States becomes conservative when transplanted into the European institutional context The study of the Americanization of European law has offered many examples of such fascinating ideological twists.

Securitization: The Conflict Between Personal And Market Law (Contract And Property), Tamar Frankel

Faculty Scholarship

The road to securitization - transforming debt and loans into securities - is littered with obstacles. These obstacles seem unrelated. Yet, upon reflection, many legal and business problems arising in the securitization process can be traced to one source: the inherent conflict between contract law governing personal relations among creditors and debtors, and property law governing the same relations converted into "commodities" issued or traded in the market among investors. Identical terms can be characterized as contract loans in personal context, and as personal property (securities or bonds) in market context.

Marriage Contracts And The Family Economy, Katharine B. Silbaugh

Faculty Scholarship

One simplified view of contract law is that the state enforces private bargains without looking into the substance of those bargains. From this contractual perspective marriage might look like a contract to exchange services and goods: love, money, the ability to have and raise children, housework, sex, emotional support, physical care in times of sickness, entertainment and so forth. But when the parties to a marriage put these terms in writing, courts only enforce the provisions governing money. This contract/family law rule of selective enforcement disproportionately benefits those who bring more money to a marriage, who are more likely to …

The Empire Of Death: How Culture And Economics Affect Informed Consent In The U.S., The U.K., And Japan, George J. Annas, Frances H. Miller

Faculty Scholarship

Historically, most Americans have treated health care as a private commodity whose price, and therefore availability, is primarily determined by market forces. In such a context, the law not unsurprisingly places a high premium on information disclosure by physicians. Personal autonomy-an individual's power to choose among medical options-enjoys its most zealous protection under U.S. jurisprudence.⁷ The dominant U.S. version of informed consent is grounded on principles of patient/consumer autonomy, and seems to enhance market choice. But a strong theme of collectivism now runs through some discussions of U.S. health policy.⁸ President Clinton was elected at least in part …

Litigation Cost Allocation Rules And Compliance With The Negligence Standard, Keith N. Hylton

Faculty Scholarship

This article examines compliance, incentives to bring suit, and incentives to settle in a negligence regime under alternative litigation cost allocation rules. Four allocation rules are considered: the American rule, which requires each party to pay his own costs; the British rule, which requires the losing party to pay the winning party's costs in addition to his own; the prodefendant rule, which requires the defendant to pay only his own costs if he loses and nothing otherwise; and the proplaintiff rule, which requires the plaintiff to pay only his own costs if he loses and nothing otherwise.

Foreword: The Constitution Of Responsibility, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The American legal academy is decidedly nationalistic. Comparative law tends to be a minor part of the law school curriculum, and discussion of alternative legal systems almost never finds its way into mainstream courses like constitutional law. As a result, much that is distinctive about American constitutionalism, and the American legal system in general, is often taken for granted. The federal Constitution, for example, says much about governmental structure, power, and limitations, but virtually nothing about the obligations of citizens to one another or to the government.' This feature of the American Constitution starkly sets it apart from many of …

Foundations Of Rights Jurisprudence In Israel: Chief Justice Agranat's Legacy, Pnina Lahav

Faculty Scholarship

"Liberty of the individual is a things of the past, or the future, in Palestine", wrote Bernard Joseph, a distinguished member of Israel's "government in the making" in 1948, shortly before Israel was inaugurated as a sovereign state. Joseph's "present" was the dusk of British rule in Palestine. Draconian Defence (Emergency) Regulations suspended conventional liberties ordinary westerners were accustomed to expect and turned Palestine into a police state.

The Supreme Court Of Israel: Formative Years, 1948-1955, Pnina Lahav

Faculty Scholarship

This article looks at the institutional and jurisprudential development of the Israeli Supreme Court in its early stages.