Tax Law Commons^™

Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

King v. Burwell is a crucial victory for the Obama Administration and for the future of the Affordable Care Act. It also has important implications for tax law and administration, as explored in the other terrific contributions to this Pepperdine Law Review Symposium. In this Essay, we turn to another tax-related feature of the Chief Justice’s opinion for the Court: It is hard to ignore the fingerprints of a tax lawyer throughout the opinion. This Essay focuses on two instances of a tax lawyer at work.

First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as …

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 …

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.

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.

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 Death Of Tax Court Exceptionalism, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

Tax exceptionalism—the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state—has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for the demise of another instance …

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 …

Slump Sale Transactions - Taxation Issues In India, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Economists Are From Mercury, Policymakers Are From Saturn, Roberta F. Mann

Roberta F Mann

Men are from Mars, Women are from Venus is a book about communication between different types of people in a relationship. Lawyers and economists are different types of people who come together in the legislative and policymaking realm. Although legislators come from many backgrounds, law has been the most common profession of both House members and Senators since 1945. Sometimes policymakers rely on economic analysis to make decisions. Sometimes policymakers use economic analysis to support decisions already made. In particular, economic analysis has played a large role in the formation of tax and budgetary policy. Not only do economists and …

The William O. Douglas Tax Factor: Where Did The Spin Stop And Who Was He Looking Out For?, I Jay Katz

Irwin J Katz

ABSTRACT THE WILLIAM 0. DOUGLAS TAX FACTOR: WHERE DID THE SPIN STOP AND WHO WAS HE LOOKING OUT FOR?

Although much better known for his opinions regarding constitutional law and individual rights, Justice William 0. Douglas also left an indelible mark in tax law. Throughout his thirty-six year tenure on the Supreme Court, Douglas wrote a significant number of majority and dissenting opinions in some of the most famous tax law cases of his day. As the title of the article suggests, most of Douglas's opinions were full of spin from the bias of the party he favored and read …

The Vehicle Miles Tax: The Unintended Consequences Of Paying As You Drive, Gregory A. Lush

Gregory A. Lush

3. A Vehicle Miles Tax Reduces Manufacturer Incentives to Build Electric Vehicles

It follows that if consumers have few incentives to buy electric vehicles, manufacturers will have less of an incentive to make them. If electric cars were not in demand, then why would anyone make them and try to sell them? In a market that is finding electric vehicles to be a tough sell, we need to encourage the sale and production of electric vehicles as much as possible. The effect of enacting a mileage-based tax will be the attrition of automakers producing electric vehicles, furthering the nation’s dependency …

Dissecting O'Donnabhain, Anthony C. Infanti

Anthony C. Infanti

In O'Donnabhain v. Commissioner, a sharply divided Tax Court allowed a medical expense deduction for some costs related to sex reassignment surgery. This short commentary examines the opinions in the case and concludes that the taxpayer's victory rings hollow.

The Untold Story Of Crane V. Commissioner Reveals An Inconvenient Tax Truth: Useless Depreciation Deductions Cause Global Basis Erosion To Bait A Hazardous Tax Trap For Unwitting Taxpayers, I Jay Katz

Irwin J Katz

Facts not discussed in the Supreme Court's decision in Crane v. Commissioner (much better known for Footnote 37) reveal an inconvenient tax truth of a hazardous tax trap for unwitting taxpayers (the "Basis Reduction Tax Trap"). For seven years, Beulah Crane operated an apartment building at a loss. For that reason, the substantial amount of allowable depreciation deductions on the building produced minimal tax benefits for her. Notwithstanding the lack of tax benefits, the basis of the apartment building was reduced by the depreciation deductions pursuant to section 1016(a) (2) of the Internal Revenue Code. Under threat of foreclosure, Beulah …