Digital Commons Network^™

The Human Environment: Awakening To The Indomitable Cuban Spirit—Government, Culture, And People, Berta E. Hernández-Truyol

UF Law Faculty Publications

My thoughts are to write about The Human Environment. I will address the recent events concerning the increased silencing of dissent and the criminal law reforms that prohibit peaceful gatherings.

Dark Money Darker? Irs Shutters Collection Of Donor Data, Philip Hackney

Florida Tax Review

directors, are not public facing. Without substantial donor information, an IRS auditor has no reason to begin to question certain transactions and operations of the nonprofit that accrue to the benefit of a substantial donor that could potentially lead to modification of a claimed tax result. The Supreme Court recently found a similar requirement of the state of California to impose a burden on First Amendment free association rights, and furthermore found that the state failed to show the requirement was narrowly tailored to the governmental interest of protecting citizens from fraud on charity. The Court’s ruling calls into question …

The Rise Of Law And The Fall Of Circular 230: Tax Lawyer Professional Standards, 1985–2015, Michael Hatfield

Florida Tax Review

This Article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985–2015 period: return position standards and tax shelter opinions. It opens with the ABA’s 1965 opinion providing “reasonable basis” as the standard for undisclosed return positions and then traces the development of the “realistic possibility of success” and “substantial authority” standards. The Article then explores the post-1986 second wave of corporate tax shelters and the responses of Congress, the Treasury Department, the Justice Department, and the tax bar. In addition to documenting the extensive interaction between the federal government and the …

The Hipaa Privacy Rule At Age 25: Privacy For Equitable Ai, Barbara J. Evans

UF Law Faculty Publications

This Article argues that unconsented access to data is not ethically problematic in and of itself. What has made it problematic is the weak framework of alternative protections that the Privacy Rule prescribes when data are used without individual consent. This Article proposes specific measures to strengthen those protections so that the pursuit of greater health care equity need not imply a loss of meaningful privacy standards.

Part I describes two competing visions of how to protect data privacy, examining the roots of ongoing discontent with the Privacy Rule and tracing policymakers’ original rationale for fashioning a major federal privacy …

Taxpayers' Rights: Comparative Analysis Of The United States Of America And The Latin American Institute Of Tax Law (Iladt), Andres E. Bazó

Florida Tax Review

This Article addresses the challenges, trends, and evolution of Taxpayers’ Rights both in the Unites States and in Latin America, particularly by comparing the U.S. Taxpayers’ Bill of Rights and the recently adopted Taxpayers’ Rights Letter from the Latin American Institute of Tax Law (ILADT). Furthermore, although in Latin American this is a relatively more recent topic, nonetheless, in the United States it is not, and the Article also addresses the evolution of taxpayers’ rights both from the point of view of the U.S. Constitution as well as iconic decisions from the U.S. Supreme Court.

Measuring The Effect Of Social Background On Judicial Decision-Making In Tax Cases, Orli Oren-Kolbinger

Florida Tax Review

Judicial decision-making is an important part of the law-making process. The positive research of judicial decision-making is expanding, and its normative significance is undeniable. Even so, judicial decision-making in tax cases has not yet received much empirical attention. This study contributes to the existing literature, empirically evaluating if, and to what extent, non-legal factors affect the outcomes of tax cases. It examines the potential effects of judges’ social backgrounds and adds to the rather small but growing empirical literature on tax litigation. I coded the dependent variable—the judge’s level of acceptance of the taxpayer’s claim, meaning whether the judge sides …

Baseball Arbitration To Resolve International Law Disputes: Hit Or Miss?, Joost Pauwelyn

Florida Tax Review

This Article assesses a concrete proposal that may address some of the current backlash against international courts and tribunals: baseball arbitration, also known as final offer arbitration (FOA), where disputing parties each offer an answer to the dispute (their “final offer”) and the adjudicator’s task is strictly limited to picking one or the other answer (“hit or miss”). FOA preserves a crucial role for neutral, third-party adjudication but puts more responsibility on states to work out positive solutions themselves. When carefully calibrated, FOA can, at least for some types of disputes (especially numerical ones between two parties), enhance both efficiency …

Designing The Tax Treatment Of Litigation-Related Costs, Sachin S. Pandya, Stephen Utz

Florida Tax Review

Defendants often deduct for income tax purposes their litigation-related costs, such as attorney fees and payments to settle claims or satisfy judgments. The result is often a large gap between the sticker price of settlements or judgments and their after-tax cost—what defendants really pay out of pocket. The problem: For every dollar that a defendant avoids in tax liability by, for example, deducting the damage awards it pays, the civil justice system falls that much short of its corrective-justice or optimal-deterrence goals in that case. For this reason, the entire civil justice system should care about this question: How should …

(Anti)Poverty Measures Exposed, Francine J. Lipman

Florida Tax Review

Few economic indicators have more salience and pervasive financial impact on everyday lives in the United States than poverty measures. Nevertheless, policymakers, researchers, advocates, and legislators generally do not understand the details of poverty measure mechanics. These detailed mechanics shape and reshape poverty measures and the too often uninformed responses and remedies. This Article will build a bridge from personal portraits of families living in poverty to the resource allocations that failed them by exposing the specific detailed mechanics underlying the Census Bureau’s official (OPM) and supplemental poverty measures (SPM). Too often, when we confront the problem of poverty, the …

Poor Support/Rich Support: (Re)Viewing The American Social Welfare State, Wendy A. Bach

Florida Tax Review

Since at least the 1970s a variety of scholars have redefined the U.S. social welfare state to include not only traditional benefit programs (for example, Food Stamps and Social Security) but also a variety of tax benefits that are “hidden” or “submerged” forms of “welfare for the wealthy.” Including these benefits in the overall picture of U.S. social welfare provision reveals a system that is both larger in size than popularly believed and that, in addition to providing some support for the poor, distributes significant benefits regressively to households with substantial wealth. Although a variety of scholars and policy analysts …

Taking Tax Due Process Seriously: The Give And Take Of State Taxation, Hayes R. Holderness

Florida Tax Review

As the Internet has increased the ease and amount of interstate transactions, the states have struggled to require “remote vendors”—vendors without a physical presence in the taxing state—to collect or pay taxes. The states are attempting to overcome these struggles by lowering Commerce Clause limitations on their jurisdiction to tax, but meaningful limitations on such jurisdiction imposed by the Due Process Clause await the states. The Due Process Clause requires that state actions be fundamentally fair, and to meet this standard a state must provide a person with a benefit and the person must indicate acceptance of that benefit before …

The Pact Act As Indicum Of The Due Process Validity Of The Marketplace Fairness Act, Eric S. Smith

Florida Tax Review

If passed into law, the Marketplace Fairness Act would impose a federal duty on out-of-state sellers to collect a state-defined and state-benefitting use tax. This unique exercise of federal power implicates due process. The Prevent All Cigarette Trafficking Act of 2009 (PACT Act) represents the only other instance in which Congress has similarly compelled state law compliance. Two circuit courts of appeals have found the PACT Act vulnerable on concerns of due process. This Article relies on the PACT Act analogue to simulate how the Marketplace Fairness Act would fare under similar scrutiny. To this end and in this uncommon …

Big Haven And Tax Haven Secrecy, Arthur J. Cockfield

Florida Tax Review

While there is now significant literature in law, politics, economics, and other disciplines that examines tax havens, there is little information on what tax haven intermediaries—so-called offshore service providers—actually do to facilitate offshore evasion, international money laundering, and the financing of global terrorism. To provide insight into this secret world of tax havens, this Article relies on the Author’s study of big data derived from the financial data leak obtained by the International Consortium for investigative Journalists (ICIJ). A hypothetical involving Breaking Bad’s Walter White is used to explain how offshore service providers facilitate global financial crimes. A transaction cost …

Provisions Denying A Deduction For Illegal Expenses And Expenses Of An Illegal Business Should Be Repealed, Douglas A. Kahn, Howard Bromberg

Florida Tax Review

The federal income tax law denies a deduction for illegal expenses, for any expense (legal or otherwise) of an illegal business that is trafficking in controlled substances, for losses incurred in an unlawful activity, and for bribes, kickbacks, and rebates connected with the Medicare or Medicaid program. In this Article, the authors first describe the current treatment of those items by the tax law. The Article next explains that the current treatment constitutes a penalty for the taxpayer whose deduction is denied, and then explores why such a penalty is bad policy and conflicts with the traditional purposes and goals …

The Criminality Of "Tax Planning", Michelle M. Kwon

Florida Tax Review

In recent years, the federal government has adopted an aggressive prosecution policy that targets tax advisors who help their clients evade taxes. Increased prosecutions coupled with the present-day sophistication of tax practice call for a critical examination of the willfulness standard applied to tax advisors who use the Code and Treasury regulations as part of their regular practices. This is something no previous legal scholarship has done. To establish willfulness, the government must show that a person accused of a tax crime intentionally violated a known legal duty. Because knowledge of illegality is an element of the government's tax evasion …

Many Unhappy Returns: The Need For Increased Tax Penalties For Identity Theft-Based Refund Fraud, Pippa Browde

Florida Tax Review

The growing problem of fraudulent tax returns being submitted based on stolen identities is a “tsunami of fraud,” and victims, lawmakers, and law enforcement are struggling with how to deal with the fallout. The issues surrounding identity theft-based tax fraud are complex. Current IRS efforts to stem the tide involve pouring resources into assisting victims, updating IRS processes to detect and prevent refund fraud, and increasing the number of criminal investigations and prosecutions it pursues. The IRS’s approach and pending proposed legislation are not enough to address the problems created by identity theft-based tax fraud. This Article argues the IRS …

Making The Internal Revenue Service Work, Jonathan Barry Forman, Roberta F. Mann

Florida Tax Review

This is an Article about how to redesign the federal tax system so that the Internal Revenue Service (IRS) can administer it more effectively given that Congress is only willing to let the IRS have around 82,000 employees and a $12 billion budget. As the IRS Oversight Board and the National Taxpayer Advocate have frequently emphasized, the United States underinvests in the IRS. Underinvesting means that taxpayer services are suffering and that tax enforcement has been significantly weakened. With budget deficits for “as far as the eye can see” and the recent IRS troubles with tax-exempt political organizations, the prospects …

Beyond Frustration: Section 162(F) And The Deductibility Of Fines, Penaties, And Settlement Payments, Abraham N.M. Shashy Jr., Sara A. Silverstein, Ariana F. Wallizada

Florida Tax Review

No abstract provided.

Concentrated Enforcement, Leigh Osofsky

Florida Tax Review

When enforcement resources are limited, how should the scarce enforcement resources be allocated to increase compliance with the law? The answer to this question can determine to what extent the law on the books translates to the law in practice. A dominant school of thought in the tax literature suggests that they should be allocated based on a “worst-first” method, whereby the individuals likely to be most noncompliant are targeted. However, while “worst-first” methods can encourage all individuals to increase compliance so as not to be deemed the “worst,” they can also provide cover to engage in noncompliance that is …

The Movement To Destroy The Income Tax And The Irs: Who Is Doing It And How They Are Succeeding, Diane L. Fahey

Florida Tax Review

No abstract provided.

Reforming The Charitable Contribution Substantiation Rules, Ellen P. Aprill

Florida Tax Review

No abstract provided.

The De Novo Doctrine: Irrelevant To Relevancy In Civil Tax Litigation, Michael Kummer

Florida Tax Review

No abstract provided.

Legal Ethics And Federal Taxes, 1945-1965: Patriotism, Duties, And Advice, Michael Hatfield

Florida Tax Review

No abstract provided.

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Florida Tax Review

No abstract provided.

Transparency In Private Collection Of Federal Taxes, T. Keith Fogg

Florida Tax Review

Most federal taxes are collected from taxpayers by business entities, held in a public trust for the United States, and then paid over to the Internal Revenue Service (the IRS). While the vast majority of business entities pay over the taxes held in trust in a timely and appropriate manner, a sizeable amount, in dollar terms, does not get paid. The amount of unpaid “collected” taxes in 2008 created a $58 billion tax gap item. Disclosure law governing federal taxes defaults to non-disclosure for most tax returns. This general rule of non-disclosure governs the returns reporting the taxes collected by …

The Coming(?) Inflation And The Income Tax: Lessons From The Past, Lessons From The Future, David Gliksberg

Florida Tax Review

The concerns about inflation as a result of the current financial crisis and the U.S. budget deficit challenge the social order, including taxation. Based on the historical U.S. experience and discourse on this issue, the article focuses on the relationships between adjusting the tax system for inflation and the general attitude towards adjustment for inflation in the social order. The article offers a new insight which is very different from the current research. The nominalism/adjustism culture that dominates the social order is placed at the center of the analysis. There is “equilibrium” between the scope of adjustment in the social …

Investment Income Withholding In The United States And Germany, Lily Kahng

Florida Tax Review

No abstract provided.

Discretion And Deterrence In Tax Sentencing After Rita, Gall And Kimbrough—Opportunities For Alternative Sentences And Potential Abuses, Marla Schwaller Carew

Florida Tax Review

No abstract provided.

A Tax Morale Approach To Compliance: Recommendations For The Irs, Marjorie E. Kornhauser

Florida Tax Review

No abstract provided.

Murphy And The Sixteenth Amendment In Relation To The Taxation Of Non-Excludable Personal Injury Awards, Joseph M. Dodge

Florida Tax Review

No abstract provided.