Law Commons^™

Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of …

Enlisting The Tax Bar, David M. Schizer

Faculty Scholarship

Tax shelters have proliferates in the United States not only because of financial innovation, the globalization of capital markets, the increasing complexity of our tax system, the inadequacy of tax penalties, the lack of political support for tax reform, and the growing popularity of textualist interpretation – all factors that have attracted considerable attention in the literature. Shelters also derive from a structural imbalance in our tax system that has not been adequately explored: In important respects, the private tax bar outmatches its counterpart in government. This imbalance is one of sheer numbers, of access to information, and, at least …

After Confidentiiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon

Faculty Scholarship

Recent business scandals and the regulatory responses to them raise basic questions about the role of the business lawyer. Lawyers were major participants in Enron and in similar controversies over corporate disclosure. Lawyers have also been key players in the corporate tax shelter industry. In both instances, their conduct has prompted federal regulations that repudiate to an unprecedented degree the bar's traditional understanding of its structure and obligations.

The provision of the Sarbanes-Oxley Act of 2002 mandating "up-the-ladder" reporting by public corporation counsel was the first federal statute in American history to regulate lawyers directly and broadly. The second came …

Transfiguration Of The Deadbeat Dad And The Greedy Octogenarian: An Intratextualist Critique Of Tax Refund Seizures, Bobby L. Dexter

Bobby L. Dexter

In light of the federal government's plenary collection powers, the states have, for several years, sought and, with the help of Congress, managed to secure the assistance of the United States in obtaining various forms of revenue. As early as 1975, Congress authorized the Department of the Treasury to collect past-due, child-support payments in the same manner in which it assessed and collected certain federal taxes under emergency or exigent circumstances (i.e., jeopardy assessment/collection). Because such collection procedures were often considered cumbersome and costly, however, Congress soon authorized the direct seizure of pending income tax refunds as a more efficient …

Substance Over Form? Phantom Regulations And The Internal Revenue Code, Amandeep S. Grewal

Andy Grewal

What happens when Congress commands the Secretary of an administrative agency to issue regulations, but the Secretary fails to act?

In most areas of the law, the answer is obvious: a party aggrieved by the Secretary's delay should file a suit (under 5 U.S.C. 706 or a similar provision) asking a court to compel the Secretary to issue regulations.

In the tax area, however, a different pattern has emerged. When Congress enacts a statute commanding the Secretary of the Treasury to act, the courts generally have not bothered to issue an order compelling him to do so. Rather, the reviewing …

Selective Waiver And The Tax Practitioner Privilege, Amandeep S. Grewal

Andy Grewal

Congress blundered badly by defining the federally authorized tax practitioner privilege by cross-reference to the attorney-client privilege. The relationship between a client and a FATP is wholly different from that between a client and an attorney, and the application of attorney-client principles to the FATP privilege has given rise to confused judicial opinions. This report attempts to stem the confusion with respect to one aspect of the FATP privilege. The proper application of the selective waiver doctrine to the FATP privilege remains an open question, though courts seem poised to reject it. They have rejected it numerous times in the …

How To Build A Bridge: Eliminating The Book-Tax Accounting Gap, Celia Bigoness

Celia Bigoness

This article argues that the asserted benefits of the book-tax divide no longer justify its substantial costs in terms of tax compliance, revenue collection, economic policy, and the perceived unfairness of the U.S. income tax laws. The book-tax divide in particular opens an enormous gap within which corporations seeking to reduce tax liabilities can shelter reported financial income. This article considers that neither the tax system’s primary goal of raising revenue nor the financial accounting system’s primary goal of providing investor information would be compromised under a system of near-total accounting conformity.

Working For Free: It Ought To Be Against The (Tax) Law, Richard Winchester

Richard Winchester

Employment taxes account for an enormous share of federal tax receipts. And it is widely acknowledged that taxes on the self-employed are collected under a dysfunctional set of laws that is long overdue for repair. Yet, there is surprisingly little legal scholarship in the field. This article fills a portion of that gap. It examines some fundamental flaws that plague our nation’s employment tax laws, focusing on how President Bush’s dividend tax cut created an incentive for wealthy individuals to exploit those flaws at the government’s expense when they work for a corporation that they also own and control. Specifically, …