Law Commons^™

Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis J. Ventry Jr

Indiana Law Journal

One of the most famous Supreme Court tax cases celebrated its eightieth birthday last year. In Poe v. Seaborn, the Court reified two principles of the federal income tax: ownership determines tax liability and state law determines ownership. This Article affirms that family taxation continues to follow ownership, not marriage, despite the federal government’s position that the “ownership equals taxability” rule applies almost exclusively to heterosexual spouses. Verifying the vitality of this principle carries significant implications for all families, particularly nontraditional families. Under the aegis of Seaborn, the principle authorizes certain members of state-recognized relationships—marriages, domestic partnerships, civil unions—to file …

When Should Asset Appreciation Be Taxed?: The Case For A Disposition Standard Of Realization, Jeffrey L. Kwall

Indiana Law Journal

The realization requirement is one of the most basic elements of the United States income tax. Due to this requirement, any increase in the value of a person’s property is not taxed when it occurs. Rather, the tax on asset appreciation is deferred until the occurrence of a realization event; that is, until the property is transferred in exchange for money or other consideration. By contrast, all other forms of income (e.g., salary, rents) are taxed immediately.

The realization requirement is one of the most basic elements of the United States income tax. Due to this requirement, any increase in …

Retroactivity And The Fraud Enforcement And Recovery Act Of 2009, Matthew Titolo

Indiana Law Journal

This Article resolves confusion over the scope of the Fraud Enforcement and Recovery Act (FERA), which amends the False Claims Act (FCA), to clarify that it covers fraud against the taxpayers even where committed by and against other government contractors and subcontractors. I focus on a controversial retroactivity clause applying FERA’s expanded liability language to pre-enactment conduct. Ambiguity has led to inconsistent outcomes: some courts have ruled that FERA’s new language applies to pre-enactment conduct while others have reached the opposite result. Much of practical consequence rides on how we resolve this ambiguity—the Department of Justice is currently investigating over …

From Programmatic Reform To Social Science Research: The National Tax Association And The Promise And Perils Of Disciplinary Encounters, Ajay K. Mehrotra, Joseph J. Thorndike

Articles by Maurer Faculty

This article uses the history of the National Tax Association (NTA), the leading twentieth-century organization of tax professionals, to strengthen our empirical understanding of the disciplinary encounter between law and the social sciences. Building on existing sociolegal scholarship, this article explores how the NTA embodied tax law's ambivalent historical interaction with public economics. Since its founding in 1907, the NTA has changed dramatically from an eclectic and catholic organization of tax professionals with a high public profile to an insular, scholarly association of mainly academic public finance economists. Using a mix of quantitative and qualitative historical evidence, we contend that …

Three Essays On Tax Salience: Market Salience And Political Salience, David Gamage, Darien Shanske

Articles by Maurer Faculty

This Article analyzes the literatures on how individuals understand taxation (i.e., tax salience). We evaluate how taxpayers respond to different presentations of tax prices both in their roles as market participants and as voters. We aim to combat naïve notions about tax salience that currently exert a pernicious influence on tax lawmaking. In particular, we argue that it is normatively desirable for governments to reduce tax salience with respect to market decision making, and that there is nothing objectionable about governments reducing tax salience with respect to political decision making.