Law Commons^™

Business Lobbying As An Informational Public Good: Can Tax Deductions For Lobbying Expenses Promote Transparency?, Michael Halberstam, Stuart G. Lazar

Journal Articles

The view that “lobbying is essentially an informational activity” has persistently served the suggestion that lobbying provides a public good by educating legislators about policy and the consequences of legislation.

In this article, we link a proposed tax reform with a substantive disclosure requirement to promote the kind of “information subsidy” that serves the public interest, while mitigating – at least to some extent – the distortion that may result from the imbalance of financial resources on the business side and other institutional contraints identified in the literature. We argue that corporate lobbying should be encouraged – by allowing business …

Revisiting The Tax Treatment Of Citizens Abroad: Reconciling Principle And Practice, Michael Kirsch

Journal Articles

In an increasingly mobile world, the taxation of citizens living abroad has taken on increased importance. Recent international administrative developments — most notably, the weakening of foreign bank secrecy and expansion of global information sharing norms — have further raised the profile of this issue. While U.S. law traditionally has taxed U.S. citizens living abroad in the same general manner as citizens living in the United States, a number of scholars have proposed abandoning the use of citizenship as a jurisdictional basis to tax. In its place, they would apply residence-based principles — i.e., exercising full taxing rights over U.S. …

Who’S Afraid Of The Big Bad Tax-Free Liquidating Distribution? Ideological Debates On Taxation And The Repeal Of General Utilities, Martin Edwards

Journal Articles

The General Utilities doctrine, named for the 1935 Supreme Court decision allowing a corporation to distribute appreciated assets to shareholders without reporting a taxable gain, was once known as one of seven fundamental principles of American corporate taxation. The doctrine’s popularity reached its peak in 1954, when Congress formally incorporated it into the Internal Revenue Code. Despite this esteemed position among tax-law doctrines, General Utilities was routinely criticized because, among other things, it allowed a situational (and arbitrary) reprieve from “double taxation” of corporate income. Corporate income is functionally taxed twice in the sense that the corporation owes tax on …

Nfib V. Sebelius And The Transformation Of The Taxing Power, Barry Cushman

Journal Articles

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five Justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other Justices had concluded that the provision was not a legitimate exercise of the commerce power, the Court held that it was a valid exercise of the taxing power.

The origin of the distinction between taxes and penalties in taxing power jurisprudence is found in the 1922 …

Tax Recognition, Barry Cushman

Journal Articles

This article was prepared for the St. Louis University Law Journal’s “Teaching Trusts & Estates” issue. Many law students take a course in Trusts & Estates, but comparatively few enroll in a class devoted to the federal wealth transfer taxes. For most law students, the Trusts & Estates course provides the only opportunity for exposure to some of the basic features of the estate tax, the gift tax, the generation-skipping transfer tax, and some related features of the income tax. The coverage demands of the typical Trusts & Estates course do not allow for intensive discussion of these issues, but …

Taxing Social Enterprise, Lloyd Histoshi Mayer

Journal Articles

The fairly strict divide in the United States between for-profit and nonprofit forms presents a quandary for many entrepreneurs who want to combine doing good with doing well. On the one hand, for-profits offer great flexibility and access to capital and so attract entrepreneurs who would like to take advantage of the ability of for-profits to scale up rapidly to meet growing demand. At the same time, however, for-profit forms also limit entrepreneurs’ ability to engage in philanthropy, due to the fiduciary duties managers owe to the equity holders. On the other hand, nonprofits offer their founders the freedom to …