Law Commons^™

Will States Step Up In 2020? We Hope So, Darien Shanske, David Gamage

Articles by Maurer Faculty

We offer no predictions about the next year in tax, but we will offer what we hope will happen — if not next year, then soon. To paraphrase Chief Justice John Roberts, we hope that when it comes to the taxation of multinational corporations in particular, states will act more like the “separate and independent sovereigns” that they are. often rely on volatile revenue sources. More stable tax bases, like the sales tax and the property tax bases, are riddled with design flaws, from the sales tax base not including services and intangibles to the property tax failing to provide …

Tax Policy For The Wider Cryptoverse, Arild B. Doerge

Student Scholarship

The rapid rise of Bitcoin and other “cryptoassets” offers many interesting technological capabilities but also comes with uncertainty and volatility in the markets for these assets. The diversity of types of cryptoassets is increasing rapidly, while public understanding and government policy have generally been slow to take account of this diversity. In regard to taxation policy related to cryptoassets, current IRS guidance merely categorizes cryptoassets as general property. The policy implications of this classification run contrary to fundamental goals of tax policy by inhibiting how people use cryptoassets, making compliance more complex and ambiguous than necessary, and taxing cryptoasset transactions …

Defining A State-Owned Enterprise In International Investment Agreements, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

The objective of this article is to establish a unified conceptual framework for State-owned enterprises in international investment law. I hope to furnish drafters and negotiators with the tools to define such enterprises in accordance with their policy concerns. The central thesis is that five definitional criteria must be considered: (i) separate legal personality; (ii) extent and form of control; (iii) eligible governmental units; (iv) nature of activity; and (v) purpose of activity. While variations within each criterion can reflect the policy choices of contracting parties, failure to adequately delimit the boundaries of all five will confer discretion on arbitrators …

Law School News: Remembering Rwu Laws Founding Dean 9-10-2019, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Taxing "All Other Income" In Singapore And Malaysia, Vincent Ooi

Research Collection Yong Pung How School Of Law

Section 10(1)(g) of the Singapore Income Tax Act is a ‘sweeping-up’ provision which catches all income not falling under sections 10(1)(a)–(f). More than 50 years after its introduction, the application of section 10(1)(g) is still unclear despite the test laid out in IB v CIT. This article notes that the current jurisprudence is limited to cases involving gains or profits from the disposal of assets. It argues that the reliance on the Australian Myer Emporium test in IB v CIT was misplaced and that the section 10(1)(g) test should not have a sole focus on intention. Rather, it proposes a …

The Rhode Island Earned Income Tax Credit: History And Analysis, Andrew Boardman

Senior Honors Projects

This paper offers a comprehensive political history of the Rhode Island Earned Income Tax Credit (EITC) and an analysis of Rhode Island EITC recipients. It explores the history of the Rhode Island EITC, an income subsidy available to low-income workers, from its introduction in 1975 through 2018. It details the forces behind expansions and reforms and the effects of those changes. It also analyzes microdata to construct a profile of current EITC recipients. This paper concludes that the Rhode Island EITC has historically been viewed as both a poverty alleviation program and an incentive for labor market work. The Rhode …

Did South Dakota Make A Strategic Error In Drafting Its Wayfair Statute?, Richard Pomp

Faculty Articles and Papers

In this article, Professor Pomp questions whether South Dakota made a strategic error in drafting its Wayfair statute.

South Dakota, in preparation for its attack on Quill, passed S. 106. The law allows South Dakota to collect its sales tax from certain remote sellers. Pomp notes that Bellas Hess and Quill, in contrast, involved the collection of use taxes.

To aid in his analysis, Pomp considers a hypothetical case: a couple from South Dakota travels to New York City and purchases art from a gallery. The gallery packs and ships the art back to South Dakota. Must the gallery collect …

Myth Vs. Reality: Airbnb And Its Voluntary Tax Collection Efforts, Richard Pomp

Faculty Articles and Papers

In this report, Professor Pomp debunks the claims presented in several reports commissioned by the American Hotel and Lodging Association (Hotel Association). Despite hotel profits reaching all time highs, the Hotel Association has continued to attack Airbnb.

Part I serves as an introduction to Airbnb and its solution to an administrative challenge confronted by tax jurisdictions. Airbnb operates a platform that links guests looking for short-term rental opportunities with hosts offering such services.

There are potentially millions of hosts who are unaware that they are subject to municipal taxes on short-term rentals. Municipalities lack the resources required to track down …

The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article …

U.S. Tax Reform: Considerations For Service Members [Notes], Kan Samuel

Faculty Scholarship

No abstract provided.

Why States Should Tax The Gilti, David Gamage, Darien Shanske

Articles by Maurer Faculty

A centerpiece of the 2017 federal tax legislation’s reforms to international corporate income tax rules is the new global intangible low-taxed income regime (or GILTI). In a prior essay, we argued that U.S. state governments should conform to GILTI. But might there be constitutional restrictions preventing state governments from doing so? This essay argues that state governments can constitutionally conform to the federal GILTI rules and thereby tax GILTI income as part of the states’ corporate income tax bases. However, in doing so, we explain that state governments will need to be attentive to background constitutional principles.

Taxing E-Commerce In The Post-Wayfair World, David Gamage, Darien Shanske, Adam Thimmesch

Articles by Maurer Faculty

No abstract provided.

States Should Conform To Gilti, Part 3: Elevator Pitch And Q & A, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay argues that the states should conform to the post-2017 federal tax law's provision for Global Intangible Low-Taxed Income (or “GILTI”). This essay is directed at state legislators and their staffs and presents the argument as succinctly as possible.

Our argument can be summarized in three sentences. First, states should conform to GILTI because there is significant evidence that profit shifting is substantially eroding their corporate tax bases. Second, GILTI is a tool for identifying shifted profits. Third, there are many legally and analytically sound ways to apportion GILTI income to a state.

We also - briefly - counter …

Why States Can Tax The Gilti, David Gamage, Darien Shanske

Articles by Maurer Faculty

A centerpiece of the 2017 federal tax legislation’s reforms to international corporate income tax rules is the new global intangible low-taxed income regime (or GILTI). In a prior essay, we argued that U.S. state governments should conform to GILTI. But might there be constitutional restrictions preventing state governments from doing so? This essay argues that state governments can constitutionally conform to the federal GILTI rules and thereby tax GILTI income as part of the states’ corporate income tax bases. However, in doing so, we explain that state governments will need to be attentive to background constitutional principles.

On Yang's Proposed Federal Tax On Subnational Tax Incentives, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay analyzes presidential candidate Andrew Yang’s proposal to tax subnational tax incentives for companies at a rate of 100 percent.

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax--commonly called the “tampon tax”--represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford

Articles

In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of taxation …

Comparing Wayfair And Wynne: Lessons For The Future Of The Dormant Commerce Clause, Edward A. Zelinsky

Articles

A comparison of South Dakota v. Wayfair with Comptroller of the Treasury of Maryland v. Wynne indicates that the prospect of the Supreme Court jettisoning the dormant Commerce Clause altogether is unlikely. However, the justices who would abandon the dormant Commerce Clause can exercise decisive influence in particular cases as they did in Wayfair. The current Court’s dormant Commerce Clause skeptics – Justices Thomas and Gorsuch –provided the crucial fourth and fifth votes in Wayfair to overturn Quill.

It will continue to be rare for the Court to reverse its own dormant Commerce Clause decisions. Far from opening …