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Full-Text Articles in Law
Jurisdictional Question In Hobby Lobby, The, Erin Morrow Hawley
Jurisdictional Question In Hobby Lobby, The, Erin Morrow Hawley
Faculty Publications
Burwell v. Hobby Lobby Stores may well be the biggest case of the term. And by its own rules, the Supreme Court lacked jurisdiction. An obscure statute, the Anti-Injunction Act of 1867 (“the AIA”), imposes a pay-first requirement for federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute, and there is a good argument that the AIA applies to the contraception mandate. As we learned from National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), the best evidence of whether Congress intended the AIA to apply is the text. The mandate …
Bankruptcy Reform: What's Tax Got To Do With It?, Michelle A. Cecil
Bankruptcy Reform: What's Tax Got To Do With It?, Michelle A. Cecil
Faculty Publications
The article takes a two-pronged approach to the issue. First, it argues that all post-petition appreciation should be taxed to the debtor rather than to the debtor's bankruptcy estate because the debtor enjoys the benefits of the asset's appreciation in value and because, from a tax perspective, the results will be identical irrespective of whether the debtor or the bankruptcy estate is taxed on the asset's post-petition appreciation. Second, the article proposes that the gain accruing before the termination of the bankruptcy proceeding be treated as discharge of indebtedness income so that the debtor can defer recognition of the gain …
Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil
Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil
Faculty Publications
This Article attempts to resolve one such issue: the tax consequences of property abandonments by the bankruptcy trustee.
Crumbs For Oliver Twist: Resolving The Conflict Between Tax And Support Claims In Bankruptcy, Michelle A. Cecil
Crumbs For Oliver Twist: Resolving The Conflict Between Tax And Support Claims In Bankruptcy, Michelle A. Cecil
Faculty Publications
This article is premised on the assumption that the congressional goal of preferring support claims over federal income tax claims is indeed a laudable one, based on three interrelated policy justifications. First, support claimants are unable to spread their risk of loss like the government is able to do by raising tax rates or increasing tax revenue from other sources. As three prominent bankruptcy scholars noted in their recent study of consumer bankruptcy entitled The Fragile Middle Class: Americans in Debt:
Toward Adding Further Complexity To The Internal Revenue Code: A New Paradigm For The Deductibility Of Capital Losses, Michelle A. Cecil
Toward Adding Further Complexity To The Internal Revenue Code: A New Paradigm For The Deductibility Of Capital Losses, Michelle A. Cecil
Faculty Publications
This article examines problems inherent in the current loss limitation system, arguing that it is ill-equipped to meet parallelism concerns and that cherrypicking is not a problem that a loss limitation scheme should address. The article also argues that the current system is both fundamentally unfair to taxpayers and promotes economic inefficiency in the marketplace. It proposes an alternative system for the tax treatment of capital losses that would allow such losses to offset all types of income, but only up to the tax rate that would have been imposed had the losses instead been capital gains. The article concludes …
Comments On A Revised Filing System, R. Wilson Freyermuth
Comments On A Revised Filing System, R. Wilson Freyermuth
Faculty Publications
Professor Edward Adams's article, both in terms of its basic structure and the myriad of options it offers, neatly highlights the basic dilemma facing the Drafting Committee as it addresses the future Article 9 filing system. As he correctly notes, the filing system's shortcomings are largely due to its continued dependence on paper records, despite the increasing sophistication and availability of computerized information technology for both filing and searching. Should the Drafting Committee maintain the basics of the current system (a public, paper-based filing system) and merely attempt to identify and correct the existing shortcomings in that system, with some …
A Policy Analysis Of Fee-Shifting Rules Under The Internal Revenue Code, Gary Myers, Richard L. Schmalbeck
A Policy Analysis Of Fee-Shifting Rules Under The Internal Revenue Code, Gary Myers, Richard L. Schmalbeck
Faculty Publications
Until recently, the costs of litigating federal tax cases were borne exclusively by the parties who incurred them, regardless of whether the government or the taxpayer prevailed in the litigation. This practice reflects the application to tax disputes of the ‘American rule’ against fee shifting. Although the American rule continues to be predominant in the tax area, it has been modified in important respects. An explicit fee-reimbursement rule, benefiting prevailing taxpayers in cases in which the government is found to have acted unreasonably, was added to the Internal Revenue Code (IRC) by the Tax Equity and Fiscal Responsibility Act of …