Law Commons^™

Working With The Section 752 Partnership Liability Allocation Rules (Slides), Jennifer H. Alexander, Andrea M. Whiteway

William & Mary Annual Tax Conference

No abstract provided.

Political Campaigning By Churches And Charities: Hazardous For 501(C)(3)S, Dangerous For Democracy, Donald B. Tobin

Donald B. Tobin

Nonprofit section 501(c)(3) organizations are prohibited from participating or intervening in an election on behalf of a candidate for public office. Despite this prohibition, 501(c)(3) tax-exempt organizations have become increasingly active in political campaigns. Many organizations are either ignoring the political campaign ban or are using "issue discussion" or "lobbying" as a means of promoting candidates and testing the limits of the prohibition. Current scholarship surrounding the political campaign ban argues that the ban is either unconstitutional or inappropriate as a matter of public policy. This article argues that the ban is both meritorious and constitutional. It argues that taxpayer …

Consistency Is Key: To Preserve Legislative Intent The Irs Must Afford Legal Recognition To Non-Marital Relationships In A Post-Doma World, Shane R. Martins

Marquette Elder's Advisor

Although the Supreme Court’s recent ruling in Windsor v. US allows for federal recognition of same-sex marriages, the Internal Revenue Service will only grant spousal recognition to couples residing in states that term same-sex unions as marriages. Consequently, spousal treatment will not be extended to non-marital relationships, even in states that treat their Civil Unions and Domestic Partnerships as “marital equivalents.” Given that spousal recognition for federal tax purposes was intended to ensure geographic uniformity and horizontal equity, the IRS must grant spousal recognition to couples who are in relationships that their respective state identifies as a “marital equivalent”.

Financial Disability For All, T. Keith Fogg, Rachel E. Zuraw

Catholic University Law Review

No abstract provided.

Understanding The Amt, And Its Unadopted Sibling, The Amxt, James R. Hines Jr., Kyle D. Logue

Articles

Four million Americans with extensive tax preferences are subject to the Alternative Minimum Tax (AMT). By taxing a broad definition of income, the AMT makes it possible to have a tax system that both encourages certain activities with generous tax preferences and maintains a semblance of distributional equity. The same rationale supports the imposition of an Alternative Maximum Tax (AMxT), which would cap tax liabilities of individuals with very few preference items and thereby afford Congress greater flexibility in designing the income tax. The original 1969 AMT proposal included an AMxT; it is difficult to justify imposing one without the …

Charities In Politics: A Reappraisal, Brian Galle

William & Mary Law Review

Federal law significantly limits the political activities of charities, but no one really knows why. In the wake of Citizens United, the absence of any strong normative grounding for the limits may leave the rules vulnerable to constitutional challenge. This Article steps into that breach, offering a set of policy reasons to separate politics from charity. I also sketch ways in which my more precise exposition of the rationale for the limits helps guide interpretation of the complex legal rules implementing them.

Any defense of the political limits begins with significant challenges because of a long tradition of scholarly criticism …

The New Starker: A Nonsimultaneous Exchange Expands Section 1031/ Collateral Estoppel Clarification, Robert B. Paysinger

Pepperdine Law Review

The new Starker decision addresses the issue whether a nonsimultaneous exchange qualifies for section 1031 nonrecognition treatment. The Court of Appeals for the Ninth Circuit, in addressing this issue, also had to determine the appropriateness of the collateral estoppel "separable facts" doctrine under the facts in the case. The author provides an in-depth examination of the court's clarification of collateral estoppel and expansion of section 1031. The author, in agreeing with-the decision, welcomes the added flexibility the case lends to the real estate finance field.

California Tax Practitioners Beware: Even The Ninth Circuit's I.R.C. Section 1031 Loophole Has Limits, Laurel A. Tollman

Pepperdine Law Review

Section 1031 of the Internal Revenue Code provides tax deferred status for like-kind exchanges of investment property. The Deficit Reduction Act of 1984 amends this section to curb the use of the controversial delayed exchange as a tool to suspend tax assessment for an inordinate period of time. California attorneys should beware the fiture structuring of like-kind exchanges;for the amendment revises the lenient procedures for like-kind qualification sanctioned by the permissive Ninth Circuit.

Crane And Tufts: Resolved And Unresolved Issues, John Zimmerman

Pepperdine Law Review

Crane v. Commissioner and its famous footnote 37 have inspired much controversy and commentary. This article discusses the issues and unresolved questions surrounding the calculation of gain from relief of nonrecourse indebtedness. It does so through a thorough analysis of the actions of the courts, the Congress, and administrative agencies. The author concludes by suggesting several possible courses of action in resolving remaining ambiguities.

A Tale Of Two Taxes: A Comparative Examination Of The Individual Income Tax In The United States And The People's Republic Of China, Steven J. Arsenault

Richmond Journal of Global Law & Business

No abstract provided.

Tax Incentives For Innovation In A Modern Ip Ecosystem, Joshua Chao

Vanderbilt Journal of Entertainment & Technology Law

Technological innovation is a long-recognized catalyst for economic growth in the United States, and its promotion is an important feature of national economic policy, as evidenced by the presence of various tax incentives for innovation in the US Internal Revenue Code. Tax incentives are an important means by which governments can deliver subsidies to promote such innovation. To be effective, however, any system of tax incentives must be tailored for current economic conditions and competitive landscapes. In the current ecosystem of innovation in the United States, this means that, at the very least, the incentives for innovation in the US …

The Case For The Retention Of The State Death Tax Credit In The Federal Transfer Tax Scheme: "Just Say No" To A Deduction, John M. Janiga, Louis S. Harrison

Pepperdine Law Review

No abstract provided.

How Long Can This Go On? The Controversy Over The Application Of The Statute Of Limitations To S Corporations And Their Shareholders, J. Marcus Sommers

Pepperdine Law Review

No abstract provided.

The Qualified Personal Residence Trust: Passing Wealth To The Next Generation At A Reduced Transfer Tax Cost, Barbara Freedman Wand

Marquette Elder's Advisor

Although the qualified personal residence trust can be effective for transferring substantial wealth to the next generation at a significantly reduced transfer tax cost, the transfer of a personal residence to family members can raise complex family issues. This article examines both the non-tax and tax issues related to the qualified personal residence trust, including qualification requirements under Section 2702 of the Internal Revenue Code.

Fitness Tax Credits: Costs, Benefits, And Viability, Daniel M. Reach

Northwestern Journal of Law & Social Policy

As the number of overweight and obese Americans rises, it becomes increasingly clear that Americans need further incentives to stimulate lasting lifestyle changes. Tax incentives focused on exercise, which have been largely unexplored to this point, are an effective response to the growing obesity problem in the United States that would largely avoid the political opposition that tax policies focused on diet have encountered. In addition, they would also provide a more palatable solution for the taxpayer beneficiaries with a relatively low impact on government revenues. Viable tax incentives to encourage greater fitness include tax credits and sales tax breaks, …

The New Section 1202 Tax-Free Business Sale: Congress Rewards Small Businesses That Survived The Great Recession, Beckett G. Cantley

Fordham Journal of Corporate & Financial Law

On September 27, 2010, President Barack Obama signed the Creating Small Business Jobs Act of 2010 (“SBJA”) that contains a temporary amendment to Internal Revenue Code (“IRC”) § 1202. The amendment permits original shareholders of eligible corporation stock to sell the stock without being taxed on the sale. The temporary amendment initially only applied to certain stock acquired after the enactment of the SBJA and before January 1, 2011, but the amendment was extended on December 17, 2010 for another year ending January 1, 2012. With the impending sunset of the 15% capital gains rate at the end of 2012, …

The Forgotten Taxation Landmine: Application Of The Accumulated Earnings Tax To Irc Sec. 831(B) Captive Insurance Companies, Beckett G. Cantley

Richmond Journal of Global Law & Business

No abstract provided.

Increased Tax Liability Awards After Eshelman: A Call For Expanded Acceptance Beyond The Realm Of Anti-Discrimination Statutes, Eirik Cheverud

NYLS Law Review

No abstract provided.

Making Plaintiffs Whole: A Tax Problem Of Interest, William E. Foster

Oklahoma Law Review

This article illustrates the dramatic tax impact of interest awards in otherwise non-taxable litigation recoveries and proposes two alternative legislative solutions for the over-taxing of plaintiffs in these cases. While plaintiffs who recover personal injury awards typically receive favorable tax treatment, those who receive interest on such awards are taxed on the interest and often are not able to utilize deductions for attorney’s fees and other costs paid to obtain the award. Further, the attorney’s portion of the recovery in a contingency fee arrangement will be included in the plaintiff’s gross income. The result is that the plaintiff recovers less …

Holman V. Commissioner: A Death Knell For The Tax Value Of Transfer Restrictions In Family Limited Partnerships?, Brent B. Nicholson

William & Mary Business Law Review

This Article examines a recent United States court of appeals case concerning section 2703, Holman v. Commissioner,7 and some earlier cases, including a few under the 1958 regulation, that are relevant to Holman. The purpose of this Article is to explain the current state of the law with respect to buy-sell type agreements and their influence on setting the transfer tax value. The Article begins with a discussion of the relevant Code and Regulations, focusing on section 2703 and its legislative history. The Article then follows with a look at some of the relevant case law and an in-depth look …

Narrowing The Tax Gap Through Presumptive Taxation, Kyle D. Logue, Gustavo G. Vettori

Articles

Can the United States government significantly reduce the federal tax gap? This question has attracted a great deal of scholarly attention over the years and has been the focus of numerous government reports. The "tax gap" is the official term for the Treasury Department's estimate of the difference between what American taxpayers should pay to the federal government in a given tax year (that is, the amount of tax they owe, based on a reasonable interpretation of existing tax laws as applied to particular taxpayers' circumstances) and what they actually pay. This estimate is derived from painstaking and detailed audits …

When Canons Go To War In Indian Country, Guess Who Wins? Barrett V. United States: Tax Canons And Canons Of Construction In The Federal Taxation Of American Indians, John Lentz

American Indian Law Review

No abstract provided.

Murphy V. Internal Revenue Service, The Meaning Of 'Income,' And Sky-Is-Falling Tax Commentary, Erik M. Jensen

Faculty Publications

This article examines the widely noted D.C. Circuit case, Murphy v. Internal Revenue Service, where a panel twice got itself hopelessly entangled in the relationship between the meaning of “income” in the Internal Revenue Code and its meaning in the Sixteenth Amendment. At issue was whether a whistle-blower's recovery for emotional distress could be reached by the income tax. The first time around, the panel concluded that the recovery could not be taxed constitutionally because it was not income. The second time, apparently after having visited another planet, the very same panel concluded that the recovery could be taxed whether …

Reforming 501(C)(3): Putting The "Charity" Back In The Charitable Deduction, Jennifer Mccrabb Black

Law Student Publications

This paper seeks to lay out a proposal to redefine what it takes to receive tax-deductible donations. Part II of this paper will summarize the current state of the law as it applies to the charitable contribution deduction and the qualification for tax exemption under the Internal Revenue Code. Part III discusses the Charities Act 2006, a recent British act aimed at attempting to redefine charity for England and Wales by requiring organizations to prove that they provide a public benefit before receiving the benefits of being a charity. Part IV proposes additions and changes to the Internal Revenue Code …

Reconciling Policy And Equity: The Ability Of The Internal Revenue Code To Resolve Disputes Regarding Nazi-Looted Art, Joseph F. Sawka

University of Miami International and Comparative Law Review

No abstract provided.

Federal Fairness To State Taxpayers: Irrationality, Unfunded Mandates, And The "Salt" Deduction, Brian Galle

Michigan Law Review

By sheer dollars alone, the largest impact of the Alternative Minimum Tax is to deny many taxpayers the deduction for the taxes they paid to their state and local governments under § 164 of the Internal Revenue Code. This Article provides a fine-grained analysis of the overall fairness of the state-andlocal- tax deduction--and, by implication, the fairness of its partial repeal through the Alternative Minimum Tax. I offer for the first time a close examination of how newly understood limits on taxpayer mobility and rationality might affect individuals' choices of bundles of local taxes and localgovernment services, which in turn …

The Proper Tax Treatment Of The Transfer Of A Compensatory Partnership Interest, Douglas A. Kahn

Articles

If a person receives property as payment for services, whether for past or future services, the receipt typically constitutes gross income to the recipient. If a person performs services for a partnership or agrees to perform future services, and if the person receives a partnership interest as compensation for the past or future services, one might expect that receipt to cause the new partner to recognize gross income in an amount equal to the fair market value of the partnership interest. After all, if a corporation compensated someone for services rendered or to be rendered by transferring the corporation's own …

Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue

Articles

This article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the substance of the tax law is uncertain - that is, when the precise application of the Internal Revenue Code to a particular situation is not clear. In such situations, a number of interesting questions arise. This article will consider two of them. First, as a normative matter, how certain should taxpayers be before they rely on a particular interpretation of a substantively uncertain tax rule? If a particular position is not clearly prohibited but neither is it clearly allowed, what …

Morse Code, Da Vinci Code, Tax Code And ... Churches: An Historical And Constitutional Analysis Of Why Section 501(C)(3) Does Not Apply To Churches, Jennifer M. Smith

Journal Publications

This article is about the United States federal tax code and churches. In particular, it discusses the interplay between section 501(c)(3) and churches in America. Section II presents a background of the history of the tax exemption for churches and the judicial holdings relative to that exemption. Section III explores the historical development of the separation between church and state, tax exemptions, and section 501(c)(3). Section V analyzes section 501(c)(3) under the Constitution's free speech and religion clauses. Section V proposes a recommendation, and Section VI is the conclusion.

Political Campaigning By Churches And Charities: Hazardous For 501(C)(3)S, Dangerous For Democracy, Donald B. Tobin

Faculty Scholarship

Nonprofit section 501(c)(3) organizations are prohibited from participating or intervening in an election on behalf of a candidate for public office. Despite this prohibition, 501(c)(3) tax-exempt organizations have become increasingly active in political campaigns. Many organizations are either ignoring the political campaign ban or are using "issue discussion" or "lobbying" as a means of promoting candidates and testing the limits of the prohibition. Current scholarship surrounding the political campaign ban argues that the ban is either unconstitutional or inappropriate as a matter of public policy. This article argues that the ban is both meritorious and constitutional. It argues that taxpayer …