Tax Law Commons^™

Pink Tax And Other Tropes, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Law reform advocates should be strategic in deploying tax tropes. Through an examination of five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—this Article demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative inequalities. In comparison, slogans describing figurative taxes are less likely to influence law and human behavior, even if they have descriptive force in both popular and academic literature as a short-hand for group-based disparities. This Article catalogues and evaluates what makes for effective tax …

Disabusing The Tax Aid Narrative: What Inter-National Tax Equity Really Means For "Poor" Countries And How To (Re)Frame It, Okanga Ogbu Okanga

PhD Dissertations

International tax regimes (e.g., the “double taxation regime”) are created by states with competing tax jurisdiction to coordinate their tax rules and, specifically, to address common efficiency problems like international double taxation. In developing such regimes, states attempt to balance competing tax policy priorities: efficiency, administrability, and equity. This work engages with equity, as a policy norm of international tax (inter-national tax equity). It is my thesis that the framing/articulation of inter-national tax equity suffers from a narrative problem that, perhaps, stems from its apparent conceptual unclarity and multifarious usage. This narrative problem is most evident in the articulation of …

Taxing Choices, Tessa R. Davis

FIU Law Review

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice …

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …

Into The "Vortex Of Legal Precision": Access To Justice, Complexity, And The Canadian Tax System, Colin Jackson

PhD Dissertations

This thesis is an exploration of access to justice issues in the Canadian tax system. Drawing on the work of Roderick Macdonald, it argues for a broad conception of access to justice based on the empowerment of individuals in all of the sites, processes, institutions where law is made, administered, and applied. It argues that tax law shows the usefulness of this comprehensive approach to access to justice. Using the comprehensive approach to access to justice, the thesis goes on to argue that legal complexity should be seen as an important access to justice issue in tax law. It lays …

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford

Articles

In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of taxation …

Taxing Marijuana: Earmarking Tax Revenue From Legalized Marijuana, Armikka R. Bryant

Georgia State University Law Review

This Article provides an overview of the legal, political, and societal landscapes in states that have legalized marijuana and imposed taxes on its sale. The article begins by summarizing the War on Drugs’ origins, its fiscal expenditures, and the social policies that ultimately led to its failure.

Part I briefly details the history of marijuana regulation starting from the early twentieth century up to the Obama administration’s decision to permit recreational marijuana laws to stand in Washington state and Colorado. Part II dives deeper into the social costs of the War on Drugs and outlines the hardships faced by those …

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

Through The Lens Of Innovation, Mirit Eyal-Cohen

Mirit Eyal-Cohen

The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of innovation. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Innovation turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviations as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Using …

The Secret Economy Of Charitable Giving, Allison Anna Tait

Allison Anna Tait

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a saving doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor …

Lessons In Fiscal Activism, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli but received a dramatically different treatment. The economically inferior rule survived while its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the causes are both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

Shut Up: Pay More: This What You Voted For. Why You Don't See Me At San Francisco's Hall Of Justice, David D. Butler

David D. Butler

Urban violence, much of it politically motivated, has driven the taxpaying Middle Class into the suburbs. This has left only the tax eating poor and the tax avoiding rich in the big cities. This has resulted in urban bankruptcy in Detroit and even in California with its gifts of the technological Gold Rush, the Pacific Ocean, and the Sierra Nevada and Santa Lucia Mountains. The poor are more issolated than ever confined to the functional equivalent of no go zones. They speak a differenct language, dress differently, and sell drugs until they are caught and caged, providing good pay and …

The Matthew Effect And Federal Taxation, Martin J. Mcmahon Jr.

Martin J. McMahon

The “Matthew Effect” is a synonym for the well-known colloquialism, “the rich get richer and the poor get poorer.” This Article is about the Matthew Effect in the distribution of incomes in the United States and the failure of the federal tax system to address the problem. There has been a strong Matthew Effect in incomes in the United States over the past few decades, with an increasing concentration of income and wealth in the top one percent. Nevertheless, there has been a continuing trend of enacting disproportionately large tax cuts for those at the top of the income pyramid. …

Beer, Liquor, Or A Little Bit Of Both? Getting To The Bottom Of Properly Classifying Flavored Malt Beverages In The United States And Australia, Bryan A. Schivera

Georgia Journal of International & Comparative Law

No abstract provided.

The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli, but received a dramatically different treatment. The less efficient or economically inferior survived. Its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the reason is both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

Marriage Penalty: How Stacking Income Affects The Secondary Earner’S Decision To Work, Kevin M. Walsh

Kevin M Walsh

Our progressive tax rate structure is aimed at taxing citizens fairly and based on their ability to pay. The rate structure, however, partially loses its purpose when analyzing the income taxation of married individuals. If a married couple decides to file jointly they are sometimes taxed at higher rates than individuals are depending on the incomes of the couple. This has created what we know today as the “marriage penalty,” and it can serve as a deterrent to the secondary earner from working.

There is no simple solution to address how the marriage penalty, in combination with necessary expenses, affects …

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …

Virtual Currencies: Bitcoin & What Now After Liberty Reserve, Silk Road, And Mt. Gox?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

During 2013, the U.S. Treasury Department evoked the first use of the 2001 Patriot Act to exclude virtual currency provider Liberty Reserve from the U.S. financial system. This article will discuss: the regulation of virtual currencies; cybercrimes and payment systems; darknets, Tor and the “deep web;” Bitcoin; Liberty Reserve; Silk Road and Mt. Gox. Virtual currencies have quickly become a reality, gaining significant traction in a very short period of time, and are evolving rapidly. Virtual currencies present particularly difficult law enforcement challenges because of their: ability to transcend national borders in the fraction of a second; unique jurisdictional issues; …

Tax, State, And Utopia, Tsilly Dagan, Avital Margalit

Tsilly Dagan

This article examines the appropriate tax treatment of communities through the unique example of the Israeli kibbutz, a community that is traditionally governed by the maxim "from each according to his ability, to each according to his needs.” The case of the kibbutz highlights the tension between communities and the market in governing human interactions as well as the tension that exists between communities and the state in applying private schemes of redistribution.

The challenge communities pose for tax law is whether, and to what extent, the taxation regime should accommodate a community’s values and practices when they diverge …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Legal Mirrors Of Entrepreneurship, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small businesses are regarded the engine of the economy. But just what is a “small” business? Depending on where one looks in the law, the definitions vary and they differ from one section to another. Unfortunately, what these various size classifications fail to assess, are the policy considerations and the legislative intent for granting regulatory preferences to small concerns to begin with.

In the last century, the U.S. government has been cultivating one such policy of fiscal and economic growth. Consequently, Congress and private institutions have been acting to incentivize, support and reward entrepreneurship through the law in order to …

What's Wrong With A Federal Inheritance Tax?, Wendy Gerzog

Wendy Gerzog

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax system, but there are serious flaws with that idea. Those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; (3) the persistence of most current valuation distortion abuses; and (4) significantly decreased compliance rates and increased administrative costs inherent in a system that taxes transferees on transactions that may be largely unmonitored.

This article reviews common characteristics of existing inheritance …

What's Wrong With A Federal Inheritance Tax?, Wendy Gerzog

Wendy Gerzog

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax system, but there are serious flaws with that idea. Those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; (3) the persistence of most current valuation distortion abuses; and (4) significantly decreased compliance rates and increased administrative costs inherent in a system that taxes transferees on transactions that may be largely unmonitored.

This article reviews common characteristics of existing inheritance …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

Taxing Food And Beverage Products: A Public Health Perspective And A New Strategy For Prevention, Jennifer L. Pomeranz

University of Michigan Journal of Law Reform

The power to tax and spend is considered a primary government power, and the use thereof is associated with great public health achievements. The greatest public health challenge at present stems from the increase in obesity and chronic diseases due to poor nutrition. Several taxation strategies have emerged in the health and economic literature to raise revenue, deter consumption, and address food prices and obesity directly. These proposals include taxing obese individuals, taxing problematic food products, and instituting a tax based on certain food components. This article weighs each proposal's value and disadvantages and concludes by proposing a new tax …

What’S Wrong With A Federal Inheritance Tax?, Wendy Gerzog

Wendy Gerzog

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax system, but there are serious flaws with that idea. Those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; (3) the persistence of most current valuation distortion abuses; and (4) significantly decreased compliance rates and increased administrative costs inherent in a system that taxes transferees on transactions that may be largely unmonitored. This article reviews common characteristics of existing inheritance …

Coase V. Pigou: A Still Difficult Debate, Enrico Baffi

enrico baffi

This paper examines the positions of Coase and Pigou about the problem of the externalities. From the reading of their most two important works it appears that Coase has a more relevant preference for a evaluation of efficiency at the total, while Pigou, with some exception, is convinced that is possible to reach marginal efficiency through taxes or responsibility. It’s interesting that Coase, who has elaborated the famous theorem, is convinced that is not possible to reach the efficiency at the margin every time and that sometimes is necessary a valuation at the total, that tells us which solution is …

The Normative Underpinnings Of Taxation, Sagit Leviner Dr.

Sagit Leviner Dr.

Questions about the appropriate rules and mechanisms of taxation are, first and foremost, questions concerning the nature of society. What can be taxed, what cannot, for what purpose, when, and how, are all matters that go to the heart of society and, in particular, concern society’s underlying beliefs and values vis-à-vis the meaning and attainment of justice. This Article explores the role of normative values and theory in tax policymaking. It suggests that a candid elaboration of normative perspectives, and how they shed light on taxation, could lead to a better understanding of society as well as a better tax …

The Role Tax Preparers Play In Taxpayer Compliance - An Empirical Investigation With Policy Implications, Sagit Leviner Dr.

Sagit Leviner Dr.

In January 2010, the IRS published its Return Preparer Review Final Report, recommending extensive increases in oversight of the tax return preparer industry. The IRS suggests achieving these increases in oversight through numerous measures, including preparer registration, competency testing, continuing professional education, ethical standards, and enforcement. Effective August, 2011, new paid preparer regulation requires all tax return preparers who offer their services for a fee to register and obtain a unique Preparer Tax Identification Number (PTIN) that must be used to sign all returns they prepare. Given that additional preparer regulation is expected to come into effect within the next …