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Articles 1 - 30 of 35
Full-Text Articles in Law
Transfer Pricing, Business Restructurings And Intangibles - Case Studies: Ups V. Commissioner; Dsg Retail Ltd. V. Hmrc, Richard Thompson Ainsworth
Transfer Pricing, Business Restructurings And Intangibles - Case Studies: Ups V. Commissioner; Dsg Retail Ltd. V. Hmrc, Richard Thompson Ainsworth
Faculty Scholarship
United Parcel Service of America, the largest motor carrier in the US, and DSG Retail the largest retailer of electrical goods in the UK, restructured operations and established captive insurance companies in offshore tax havens. In both instances, these restructurings removed sizeable amounts of income from the domestic tax base.
The IRS and HMRC opened transfer pricing audits. The UPS case involved tax year 1984 and was settled in 2003; DSG Retail involved 1997 through 2005 and was settled in 2009. Both settlements came on the heels of government-favorable court decisions, and prior to the addition of Chapter IX to …
Locating The Regulation Of Data Privacy And Data Security, Edward J. Janger
Locating The Regulation Of Data Privacy And Data Security, Edward J. Janger
Faculty Scholarship
No abstract provided.
Pennsylvania's Sales And Use Tax: Has Nearly $1 Billion Been 'Zapped' Away In Fraud?, Richard Thompson Ainsworth
Pennsylvania's Sales And Use Tax: Has Nearly $1 Billion Been 'Zapped' Away In Fraud?, Richard Thompson Ainsworth
Faculty Scholarship
The Sales and Use Tax is an essential part of Pennsylvania’s revenue profile. Not only is it the State’s second largest revenue source, it has historically played a critical role in reducing the volatility of Pennsylvania’s overall tax collections. The sales tax is also critical to the city of Philadelphia, and Allegheny County. During the current economic downturn both the revenue and structural attributes of this levy should be pushing it to the front of the tax policy line.
The two topics that should rest atop Pennsylvania’s tax policy agenda should be: (1) joining the Streamlined Sales Tax initiative and …
Transfer Pricing In Business Restructurings – Reasoning From Implausible Assumptions Issue Note 2 – (Oecd, Discussion Draft), Richard Thompson Ainsworth, Andrew Shact
Transfer Pricing In Business Restructurings – Reasoning From Implausible Assumptions Issue Note 2 – (Oecd, Discussion Draft), Richard Thompson Ainsworth, Andrew Shact
Faculty Scholarship
The OECD’s Center for Tax Policy and Administration roundtable on business restructurings in January 2005 led to a Joint Working Group project later that year on permanent establishments and business restructurings. One of the results was the Discussion Draft on Transfer Pricing Aspects of Business Restructurings that was available for public comment between September 19, 2008 and February 19, 2009.
This paper concerns Issue Note No. 2 in the Discussion Draft – Arm’s Length Compensation for the Restructuring Itself.
Issue Note No. 2 is deeply flawed. It relies on an unproved correlation between structure and performance (profit/loss potential). The Discussion …
The New Financial Assets: Separating Ownership From Control, Tamar Frankel
The New Financial Assets: Separating Ownership From Control, Tamar Frankel
Faculty Scholarship
This Article is organized in three parts. Part One examines the nature of financial assets and their transition by market transactions from contracts to property. The discussion highlights the gray areas which financial assets occupy in decoupling, falling within both contract and property law.
Part Two describes four types of decoupled financial assets. The first type separates into two financial assets: ownership benefits and ownership risks. The presumed reduction of owners' risks prompted some academics to justify reducing the owners' protection. I suggest that attempts to protect owners from ownership risk have failed. Therefore, the suggestion was ill-conceived. The second …
Voip Mtic - The Italian Job (Operazione 'Phuncards-Broker'), Richard Thompson Ainsworth
Voip Mtic - The Italian Job (Operazione 'Phuncards-Broker'), Richard Thompson Ainsworth
Faculty Scholarship
On February 8, 2010 a speculative paper on the likelihood that fraudsters proficient in missing trader intra-community (MTIC) fraud might move into voice over internet protocol (VoIP) was submitted to the Boston University School of Law Working Paper Series.
Prior to that paper there was very little (if any) public discussion of VoIP MTIC. There were no assessments, no arrests, and not a hint of litigation. Fifteen days later, and before final publication the financial press exploded with coverage of a massive VoIP MTIC fraud (the Operazione “phuncards-broker” investigation). The Wall Street Journal reported: An [Italian] judge…ordered the arrest of …
Mtic (Vat Fraud) In Voip - Market Size $3.3b, Richard Thompson Ainsworth
Mtic (Vat Fraud) In Voip - Market Size $3.3b, Richard Thompson Ainsworth
Faculty Scholarship
In the beginning, the VAT fraud known as missing trader intra-community (MTIC) fraud appeared to be a UK problem concentrated in the cell phone and computer chip markets. MTIC has mutated (to other commodities) and migrated (to other Member States). This paper describes how this fraud operates in the VoIP market, and how in this mutation it is no longer confined to the EU, but can infiltrate any VAT/GST anywhere.
Canada, Botswana, Japan, Iceland and Jamaica (to mention a few jurisdictions) have consumption taxes that are just as vulnerable as is the EU VAT to VoIP missing trader fraud. It …
Virtual Intermediaries: Consumption Tax Problems In Japan, Europe, And The United States - The Case Of The Virtual Travel Agent, Richard Thompson Ainsworth
Virtual Intermediaries: Consumption Tax Problems In Japan, Europe, And The United States - The Case Of The Virtual Travel Agent, Richard Thompson Ainsworth
Faculty Scholarship
Marketplace technology is (inadvertently) chipping away at the effectiveness of consumption taxes – the Japanese Consumption Tax (CT), the European value added tax (VAT), and the American sales tax (ST) are all affected. Frequently a technology-patch or a law change can repair the tax-damage, but sometimes even though a patch or a change is known the design of the levy (or the politics behind the design) impedes application. This paper assesses these consumption taxes by considering the impact that virtual travel agents have had on revenue yields. The paper draws specific conclusions for the Japanese CT, because this consumption tax …
Teaching Specialized Legal Research: Business Associations, Kris Helge, Terri Lynn Helge
Teaching Specialized Legal Research: Business Associations, Kris Helge, Terri Lynn Helge
Faculty Scholarship
Business associations are a complex substantive topic that can be included in an advanced legal research course that teaches students sophisticated research, writing, and citation skills. This article presents the basic substantive law regarding business associations necessary to deliver instruction about advanced legal research, writing, and citation. This article also offers a model syllabus with suggested sources and assignments for students. These research assignments require students to perform tasks such as citing primary and secondary sources, learning advanced research skills using loose-leaf materials, assimilating information from multiple sources into cogent narratives, locating information using various electronic resources, digests, and other …
Zappers - Retail Vat Fraud, Richard Thompson Ainsworth
Zappers - Retail Vat Fraud, Richard Thompson Ainsworth
Faculty Scholarship
Zappers skim cash sales at retail. Zappers are add-on programs used by merchants with electronic cash registers (ECRs) or point-of-sale (POS) systems. Zappers are smart and selective. They do not skim all sales, and they never skim credit card transactions.
Although they are present in every jurisdiction, Zappers appear to be most widely used in developed economies that combine high levels of cash sales with high rates of consumption tax. Sweden, for example, has a cash-intensive economy, one of the world’s highest VAT rates (25%), and also reports that 70% of the ECRs in the country are either “… constructed …
Co2 Mtic Fraud -- Technologically Exploiting The Eu Vat (Again), Richard Thompson Ainsworth
Co2 Mtic Fraud -- Technologically Exploiting The Eu Vat (Again), Richard Thompson Ainsworth
Faculty Scholarship
On February 1, 2010 Algirdas Šemeta is expected to be confirmed as the next European commissioner for taxation, customs union, audit and anti-fraud. If his nomination passes a confirmation hearing at the European Parliament he will succeed László Kovács. At the top of Mr. Šemeta’s list of things requiring attention should be MTIC fraud in tradable CO2 permits. Political and fiscal realities make CO2 MTIC fraud a top priority.
CO2 MTIC is a technology-driven fraud that takes advantage of the same weaknesses in the EU VAT that have become well known in the cell phone and computer chip trade. The …
Quebec's Sales Recording Module (Srm): Fighting The Zapper, Phantomware, And Tax Fraud With Technology, Richard Thompson Ainsworth
Quebec's Sales Recording Module (Srm): Fighting The Zapper, Phantomware, And Tax Fraud With Technology, Richard Thompson Ainsworth
Faculty Scholarship
No abstract provided.
Organizational Liability And The Tension Between Corporate And Criminal Law, Miriam H. Baer
Organizational Liability And The Tension Between Corporate And Criminal Law, Miriam H. Baer
Faculty Scholarship
No abstract provided.
The Fatal Design Defects Of L3cs, Daniel S. Kleinberger
The Fatal Design Defects Of L3cs, Daniel S. Kleinberger
Faculty Scholarship
This article argues that the L3C is an unnecessary and unwise contrivance, and it's very existence is inherently misleading. The notion that an L3C should have privileged status under the Internal Revenue Code (known as the Code) for access to tax-exempt foundation resources is inescapably at odds with the key policies that underpin the relevant Code sections, and L3Cs are not on track-let alone on a fast track-to receive special status under the Code. An ordinary limited liability company (LLC) can perform precisely the same functions proclaimed of L3Cs. In addition, because of technical flaws, the L3C legislation adopted to …
Barriers To Effective Risk Management, Michelle M. Harner
Barriers To Effective Risk Management, Michelle M. Harner
Faculty Scholarship
“As long as the music is playing, you’ve got to get up and dance. We’re still dancing.”**
This now infamous quote by Charles Prince, Citigroup’s former Chief Executive Officer, captures the high-risk, high-reward mentality and overconfidence that permeates much of corporate America. These attributes in turn helped to facilitate a global recession and some of the largest economic losses ever experienced in the financial sector. They also represent certain cognitive biases and cultural norms in corporate boardrooms and management suites that make implementing a meaningful risk culture and thereby mitigating the impact of future economic downturns a challenging proposition.
The …
Bonding Limited Liability, Robert J. Rhee
Bonding Limited Liability, Robert J. Rhee
Faculty Scholarship
Limited liability is considered a “birthright” of corporations. The concept is entrenched in legal theory, and it is a fixed reality of the political economy. But it remains controversial. Scholarly debate has been engaged in absolute terms of defending the rule or advocating its abrogation. Though compelling, these polar positions, often expressed in abstract arguments, are associated with disquieting effects. Without limited liability, efficiency may be severely compromised. With it, involuntary tort creditors bear some of the cost of an enterprise. Most other proposals for reforming limited liability have been incremental, such as modifying veil piercing. However, neither absolutism nor …
The Madoff Scandal, Market Regulatory Failure And The Business Education Of Lawyers, Robert J. Rhee
The Madoff Scandal, Market Regulatory Failure And The Business Education Of Lawyers, Robert J. Rhee
Faculty Scholarship
This essay suggests that a deficiency in legal education is a contributing cause of the regulatory failure. The most scandalous malfeasance of this new era, the Madoff Ponzi scheme, evinces the failure of improperly trained lawyers and regulators. It also calls into question whether the prevailing regulatory philosophy of disclosure of disclosure is sufficient in a complex market. This essay answers an important question underlying these considerations: What can legal education do to better train business lawyers and regulators for a market that is becoming more complex? One answer, it suggests, is a simple one: law schools should teach a …
Crisis, Rescue And Corporate Social Responsibility Under American Corporate Law, Robert J. Rhee
Crisis, Rescue And Corporate Social Responsibility Under American Corporate Law, Robert J. Rhee
Faculty Scholarship
This chapter discusses the legal issues of rescue and corporate social responsibility during times of public crisis. It analyzes a corporate board’s fiduciary duty related to the management of a public crisis and the provision of aid to government and the public. The thesis is that American corporate law adequately provides corporate boards authority to assume broad principles of corporate social responsibility, and that during a public crisis this authority is specially recognized in the enabling statutes of corporate law and should be broadened even further to pursue the public good in exigent circumstances.
To Be Or Not To Be Both Ceo And Board Chair, Thuy-Nga T. Vo
To Be Or Not To Be Both Ceo And Board Chair, Thuy-Nga T. Vo
Faculty Scholarship
Part I of this article discusses the management and monitoring responsibilities of the board of directors. Part II explores the duality governance structure and its prevalence in corporate America. In Part III, the article examines and weighs the theoretical arguments for and against duality. Based on these arguments, this part assesses the impact of combined or separate CEO and Chair positions on the board’s performance of its management and monitoring responsibilities. Part IV turns to the empirical data on the effect of combined, rather than separate, CEO-Chair roles on corporate performance. Part V explains the views of corporate stakeholders on …
When The Law Is Understood—L3c No, Daniel S. Kleinberger, J. William Callison
When The Law Is Understood—L3c No, Daniel S. Kleinberger, J. William Callison
Faculty Scholarship
The November, 2009 issue of Community Dividend, included an article entitled “The L3C: A new business model for socially responsible investing.” The article spoke enthusiastically about “[t]he low-profit limited liability company, or L3C, …a newly developed form of business that blends attributes of nonprofit and for-profit organizations in order to promote investment in socially responsible objectives.”
We understand the enthusiasm; proponents of the L3C have predicted dramatic benefits. However, after careful study of the relevant law, we have concluded that the enthusiasm is misplaced. The L3C concept is fundamentally flawed, potentially dangerous, and at best counterproductive.
We also understand that …
The Single Member Limited Liability Company As Disregarded Entity: Now You See It, Now You Don’T, Daniel S. Kleinberger
The Single Member Limited Liability Company As Disregarded Entity: Now You See It, Now You Don’T, Daniel S. Kleinberger
Faculty Scholarship
The power and complexity of the single member limited liability company (“SMLLC”) comes from a conceptual contradiction: the conflation of owner and organization for tax purposes and the separation of owner and entity for non-tax, state law purposes. The contraction has significant practical consequences, which this article explores and illustrates, considering: • The SMLLC in federal court (single member not permitted to represent the LLC) • The IRS’s tortuous path to determining whether an SMLLC’s sole member is liable for the SMLLC’s unpaid employment taxes (yes; yes vindicated by the courts; then no, as a matter of policy) • Transfer …
Keynote Address: The Role Of Lawyers In The Global Financial Crisis, Steven L. Schwarcz
Keynote Address: The Role Of Lawyers In The Global Financial Crisis, Steven L. Schwarcz
Faculty Scholarship
In recent articles, the author has argued that the global financial crisis can be attributed in large part to three causes — conflicts, complacency and complexity — as well as to a type of tragedy of the commons. This article, which comprised the keynote address for the 2010 Corporate Law Teachers Association Conference, will focus on the failure of market observers, including corporate lawyers, to foresee or act on critical correlations that might have prevented, or at least mitigated, the crisis. Although conflicts, complacency, complexity and the tragedy of the commons can help to explain this failure, the goal will …
Ignoring The Writing On The Wall: The Role Of Enterprise Risk Management In The Economic Crisis, Michelle M. Harner
Ignoring The Writing On The Wall: The Role Of Enterprise Risk Management In The Economic Crisis, Michelle M. Harner
Faculty Scholarship
Enterprise risk management (ERM) targets overall corporate strategy and, when implemented correctly, can manage a corporation’s risk appetite and exposure. When ignored or underutilized, it can contribute to a corporation’s demise. In fact, many commentators point to ERM failures as contributing to the severity of the 2008 economic crisis. This essay examines the different approaches to ERM adopted by financial institutions affected by the 2008 economic crisis and how ERM contributed to the survival or failure of those firms. It then considers ERM in the broader context of corporate governance generally. This discussion reflects on ERM techniques for corporate boards …
Corporate Control And The Need For Meaningful Board Accountability, Michelle M. Harner
Corporate Control And The Need For Meaningful Board Accountability, Michelle M. Harner
Faculty Scholarship
Corporations are vulnerable to the greed, self-dealing and conflicts of those in control of the corporation. Courts historically have regulated this potential abuse by designating the board of directors and senior management as fiduciaries. In some instances, however, shareholders, creditors or others outside of corporate management may influence corporate decisions and, in the process, extract corporate value. Courts generally address this type of corporate damage in one of two ways: they designate controlling shareholders as corporate fiduciaries and they characterize creditors, customers and others as contract parties with no fiduciary duties. The traditional roles of corporate shareholders and creditors may …
Corporate Political Speech: Who Decides, Lucian A. Bebchuk, Robert J. Jackson Jr.
Corporate Political Speech: Who Decides, Lucian A. Bebchuk, Robert J. Jackson Jr.
Faculty Scholarship
The Supreme Court spoke clearly this Term on the issue of corporate political speech, concluding in Citizens United v. FEC' that the First Amendment protects corporations' freedom to spend corporate funds on indirect support of political candidates. 2 Constitutional law scholars will long debate the wisdom of that holding, as do the authors of the two other Comments in this issue.3 In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus instead on an important question left unanswered by Citizens United: who should have the …
Organizational Liability, James A. Fanto
A Myth Deconstructed: “The Emperor’S New Clothes” On The Low-Profit Limited Liability Company, Daniel S. Kleinberger
A Myth Deconstructed: “The Emperor’S New Clothes” On The Low-Profit Limited Liability Company, Daniel S. Kleinberger
Faculty Scholarship
This article carefully debunks each major tenet of the L3C “movement” and reveals the legal and practical realities under “the Emperor’s New Clothes.” Using foundation funds to offer market-rate returns to “tranched” investors is, at best, a complicated device; not appropriate for “branding” and simplistic appeals to social conscience. When a foundation contemplates making a program-related investment, the matter requires careful, individualized, professional assessment, not reliance on a branded template. In this context, the L#C is but a snare and a delusion.
Excuse Doctrine: The Eisenberg Uncertainty Principle, Victor P. Goldberg
Excuse Doctrine: The Eisenberg Uncertainty Principle, Victor P. Goldberg
Faculty Scholarship
The world is in a bit of a mess. Oil prices soared to more than $140 per barrel and within months plummeted to below $40. The pound fell from $2 to less than $1.40. Housing and stock prices crashed. Foreclosures, bankruptcies, and bailouts became newspaper staples. When things go awry like this, inevitably many people and firms regret having entered into contracts under more favorable circumstances. Many of them will be looking for ways to limit, or better yet, avoid the consequences. A preeminent contracts scholar, Melvin Eisenberg (2009), has provided them with considerable ammunition in a recent paper, arguing …
An Smllc Conundrum: Disregarded For Federal Tax Purposes But Not In Federal Court, Carter G. Bishop, Daniel S. Kleinberger
An Smllc Conundrum: Disregarded For Federal Tax Purposes But Not In Federal Court, Carter G. Bishop, Daniel S. Kleinberger
Faculty Scholarship
In Federal Court, the only member of a SMLLC may not represent the SMLLC unless that owner is also a lawyer. To do so exposes the SMLLC to dismissal as well as the owner to the unauthorized practice of law. The article explores the implications of these rules to small closely held LLCs.
Contract Interpretation Redux, Alan Schwartz, Robert E. Scott
Contract Interpretation Redux, Alan Schwartz, Robert E. Scott
Faculty Scholarship
Contract interpretation remains the largest single source of contract litigation between business firms. In part this is because contract interpretation issues are difficult, but it also reflects a deep divide between textualist and contextualist theories of interpretation. While a strong majority of U.S. courts continue to follow the traditional, "formalist" approach to contract interpretation, some courts and most commentators prefer the "contextualist" interpretive principles that are reflected in the Uniform Commercial Code and the Second Restatement. In 2003, we published an article that set out a formalist theory of contract interpretation to govern agreements between business firms. We argued that, …