Law Commons^™

Speak Up: Issue Advocacy In Increasingly Politicized Times, Sally Wagenmaker

The Journal of Business, Entrepreneurship & the Law

This article first provides a brief primer on current constraints affecting Section 501(c)(3) and 501(c)(4) organizations' communications within the context of what has become known as “issue advocacy.” It then sets forth the problem of increasing politicization of nonprofits' issue advocacy activities. The article next evaluates related constitutional tensions for politically tinged issue advocacy, through the lens of the Supreme Court's free speech decisions. It concludes by addressing how the IRS's different content-based standards for issue advocacy are susceptible to abuse, are otherwise constitutionally suspect, and therefore warrant reform.

Officers Under The Appointments Clause, John Plecnik

Law Faculty Articles and Essays

Much ink has been spilled, and many keyboards worn, debating the definition of "Officers of the United States" under the Appointments Clause of Article II, Section 2, Clause 2 of the Constitution. The distinction between Officers and employees is constitutionally and practically significant, because the former must be appointed by the President, with or without the advice and consent of the Senate, Courts of Law, or Heads of Departments. In contrast, employees may be hired by anyone in any manner.

Appointments Clause controversies are triggered when a government official who was hired as an employee is accused of unconstitutionally wielding …

Even Adr Must Pay Its Dues: An Analysis Of The Evolution Of The Internal Revenue Service's Adr Programs And Where They Still Need To Grow, Stephen Folan

Pepperdine Dispute Resolution Law Journal

The article offers information on the evolution, development and effectiveness of the alternative dispute resolution (ADR) programs in the Internal Revenue Service (IRS) appeals system. It analyzes the history of the IRS's post-appeal mediation and arbitration systems and advocates adoption of its contemporary commercial arbitration principles to increase the ADR program's desirability for both the taxpayers and the IRS. It proposes cost-effective measures for dispute resolution processes.

Why Congress Adopted The Church Audit Procedures Act And What Must Be Done Now To Restore The Law For Churches And The Irs, J. Michael Martin

Akron Tax Journal

This Article explores the significant policy purposes achieved by CAPA through the lens of the law's history and present challenges. Part II reviews the historical context and events leading to the adoption of CAPA in 1984. Part III then describes the present challenges associated with the law due to the failure of Congress and the Treasury Department to rectify the issue of who is an appropriate high-level Treasury official under CAPA. Finally, Part IV concludes with recommended solutions for restoring the law consistent with congressional intent in adopting CAPA-solutions that could easily be achieved through a simple amendment to the …

Helvering V. Gregory: All The Perspectives From Which Learned Hand Was Wrong, Anthony P. Polito

Akron Tax Journal

At a fundamental level, this Article is about interpretation. The best way for a court to remain faithful to a complicated statute reflecting a delicate legislative compromise is to enforce its language literally without introducing extraneous tests or elements that cannot be found in the statutory language. Yet, it is important to be clear that it approaches the question from an ex ante perspective, from where things stood before Learned Hand's famous opinion.

This Article is not a call for the judicial reversal of Hand's opinion. Given the value of the predictability of established expectations as to statutory meaning, stare …

Pfics Gone Wild!, Monica Gianni

Akron Tax Journal

This Article begins in Part II with a discussion of what constitutes a passive foreign investment company ("PFIC") and follows in Part III with the tax rules applicable to PFICs. Part IV begins with a general explanation of the goal of tax deferral, with discussion of several anti-deferral tax regimes enacted prior to the PFIC provisions, i.e., Personal Holding Companies ("PHCs"), Foreign Personal Holding Companies ("FPHCs"), Subpart F income of CFCs, Foreign Investment Companies ("FICs"), and Regulated Investment Companies ("RICs"). An understanding of these regimes is necessary to appreciate the genesis of the PFIC rules. Part V analyzes the policy …

What's Mine Is Mine: Taxing Pre-Contribution Gains, Rodney P. Mock, Jeffrey Tolin

Akron Tax Journal

This article conducts an analysis of the Internal Revenue Code's varied income tax treatment between depreciated property and appreciated property transferred into C corporations by shareholders in nonrecognition transactions.7 It is at the entry point of the non-recognition transaction where the lobster pot unfairly doubles up on unrecognized gains at both the corporate and shareholder level notwithstanding that unrecognized losses generally remain singular at either level. The authors call into question this long-standing practice of artificial gain duplication upon corporate entry under Subchapter C. From a tax policy perspective, such disparate treatment makes little sense - particularly when the duplicated …

The Individual Mandate Tax Penalty, Jeffrey H. Kahn

Scholarly Publications

In 2010, President Obama signed legislation that significantly altered the healthcare and health insurance markets in the United States. An integral part of that reform is the individual mandate, a provision that requires individuals to purchase and maintain healthcare insurance. Failure to maintain such coverage subjects an individual to a tax penalty. The Supreme Court upheld the constitutionality of that provision under Congress’s taxing power.

Despite the Supreme Court upholding the individual mandate, fundamental questions remain. This Article addresses the question of whether the use of a tax penalty to encourage taxpayers to do something that the government desires is …

Loving And Legitimacy: Irs Regulation Of Tax Return Preparation, Steve R. Johnson

Scholarly Publications

No abstract provided.

I Got 99 Problems And They’Re All Fatca, Nirav (Jonathan) Dhanawade

Northwestern Journal of International Law & Business

Offshore personal income tax evasion accounts for approximately $50 billion in annual lost revenue for the United States. These large sums of money are squirrelled away in tax havens—jurisdictions, such as Aruba, the Cayman Islands, and Dubai, whose laws allow some U.S. citizens to evade paying their U.S. income taxes. Before the Foreign Account Tax Compliance Act (FATCA) was enacted, U.S. citizens could avoid taxes on passive income by not reporting this income to the Internal Revenue Service (IRS). To detect tax evasion, the IRS pursued U.S. citizens with undeclared assets in foreign banks. But the IRS’s quest was largely …