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Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch

Florida Tax Review

Family partnerships have been become increasingly popular as a means of avoiding estate and gift taxes. As other estate freezing techniques have been closed off by statutory anti-abuse rules, estate planners have increasingly resorted to partnerships as a vehicle for transferring assets within a family at deeply discounted values. Discounts ranging from one third to over one half of the value of the underlying assets are routinely claimed, and often allowed, based on lack of marketability and lack of control, even where these disabilities have no lasting or ascertainable economic effect. Nevertheless, the use of family partnerships to suppress value …

Book Tax Conformity For Financial Instruments, Yoram Keinan

Florida Tax Review

This article does not endorse utilizing general book tax conformity for corporations in the United States but rather discusses current conformity and non-conformity between tax and accounting rules for financial instruments and explores possible alternatives to conform the non-conforming aspects. I do not suggest that Generally Accepted Accounting Principles (“GAAP”) will substitute tax law but only provide guidance pertaining to financial instruments. This article presents three major examples of Code provisions in which Congress’s specific intent was to conform tax rules to the then existing GAAP: section 1256, section 475, and the original issue discount (OID) rules.

Generally, there are …

Sharing Bank Deposit Information With Other Countries: Should Tax Compliance Or Privacy Claims Prevail?, Cynthia Blum

Florida Tax Review

A proposed regulation issued as one of the final acts of the Clinton Administration would have required U.S. banks to routinely file with the IRS reports identifying nonresident alien individuals receiving payments of interest and the amount of such interest. U.S. bank deposit interest paid to nonresident aliens is exempt from U.S. tax, and previously only payments to Canadians were required to be reported to the IRS. Intense opposition to this regulation was expressed by bankers and other organizations, such as the Center for Freedom and Prosperity, as well as by Governor Jeb Bush of Florida (where bank deposits are …

Recent Developments In Federal Income Taxation: The Year 2003, Ira B. Shepard, Martin J. Mcmahon Jr.

Florida Tax Review

This recent developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the most recent twelve months—and sometimes a little farther back in time if we find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed …

Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin

Florida Tax Review

If a partnership makes a payment to a partner for services rendered in the latter's capacity as a partner or for the use of capital, to the extent that the payment is determined without regard to partnership income, it is characterized by the Internal Revenue Code as a "guaranteed payment" and is treated differently from other partnership distributions. In addition, if a partnership makes a payment in liquidation of a retiring or deceased partner's interest in the partnership, part of that payment may be characterized as a guaranteed payment by section 736(a)(2). We will discuss in Part VI of this …

The Ethics Of Tax Cloning, Anthony C. Infanti

Florida Tax Review

In the United States, the limits on a fiduciary’s activities are usually developed by analogy, using existing fiduciary relationships as a guide. Many of the American neutral experts advising transition countries are attorneys, and as such are fiduciaries whose activities are confined within prescribed ethical boundaries. In addition, the subject of the neutral experts’ advice—whether they, as individuals, happen to be attorneys or not—is law reform. By rendering advice concerning the proper structure and content of a country’s tax laws, these experts are rendering what is arguably legal advice—broadly construed. In view of the nature of the advice being given …

Leaving Money On The Table(S): An Examination Of Federal Income Tax Policy Towards Indian Tribes, Mark J. Cowan

Florida Tax Review

This Article addresses whether Indian tribes should be subject to federal income taxation from both a tax policy and Indian policy perspective. Underlying the debate over whether the tribes should be taxed is the tribe’s unique relationship to the federal government. Congress’s power over the Indian tribes is plenary and there is no provision in the Constitution reserving certain powers to the tribes.

Because there are no constitutional constraints to prevent Congress from taxing Indian tribes, the decision of whether to tax the tribes primarily involves fundamental concerns of fairness and equity. A tribe simultaneously acts as a sovereign government …

Back To The Future Interest: The Origin And Questionable Legal Basis Of The Use Of Crummey Withdrawal Powers To Obtain The Federal Gift Tax Annual Exclusion, Bradley E.S. Fogel

Florida Tax Review

The IRS lost the Crummey battle before it began. Hindsight makes abundantly clear that the real abuse in Crummey powers has nothing to do with the majority of the power-holder. The abuse is endemic to all Crummey powers. As discussed herein, in Crummey and the earlier cases, the IRS should have argued that a withdrawal power does not create a present interest, regardless of the majority of the power-holder.

Part Two of this article addresses the basic workings of the annual exclusion.

Part Three discusses the operation of Crummey powers and notes that the Economic Growth Tax Relief Reconciliation Act …

Recent Developments In Federal Income Taxation: The Year 2002, Ira B. Shepard, Martin J. Mcmahon Jr.

Florida Tax Review

This current developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the year 2002. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail; only the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed except to the extent that they have either led to administrative rulings and regulations or have affected previously issued rulings and regulations otherwise covered by the outline. The outline focuses primarily …

The Export Clause, Erik M. Jensen

Florida Tax Review

To explicate the Export Clause, the article begins by describing the founders’ understanding of the Clause: although not everyone at the Constitutional Convention was happy with limitations on the national government’s power to tax exports, the Export Clause was intended to be a complete prohibition of export taxation, and the prohibition was intended to have real bite. Application of the Clause to situations that go beyond Justice Marshall’s hypotheticals isn’t at all straightforward, however, and Part II discusses IBM and U.S. Shoe, which illustrate the inherent difficulties of the Export Clause and the Supreme Court’s not always happy treatment …

Charities And The Constitution: Evaluating The Role Of Constitutional Principles In Determining The Scope Of Tax Law's Public Policy Limitation For Charities, David A. Brennen

Florida Tax Review

The judicial assault on constitutionally permissible social justice efforts including affirmative action for minorities and ending discrimination against homosexuals continues. Through the rubric of “neutrality,” “equality” and “free expression,” courts today are using constitutional law principles to arrest efforts by state and federal governments either to (1) remedy present effects of historical discrimination or (2) end current discrimination. Accordingly, various federal circuit courts have interpreted Equal Protection Clause strict scrutiny as prohibiting government from considering race as a factor when making university admissions decisions or granting scholarships. Thus, it is not inconceivable that the Supreme Court might soon rule that …

Watchdogs That Failed To Bark: Standards Of Tax Review After Enron, Harold S. Peckron

Florida Tax Review

Enron Corporation, which was the seventh-largest U.S. corporation prior to its collapse, will long be a case study on various corporate governance and ethical failures. But the most frightening aspect of Enron is that it was never designed or intended to be a massive fraudulent scheme from its inception, unlike many substantial financial frauds.

It began by simply trading energy futures and eventually expanded to trading futures in commodities well beyond the company’s expertise. To continue its positive financial performance, the company required its advisors to develop “blowback” strategies ensuring continued stock price appreciation.

These so-called “strategies” were largely concerned …

Recent Developments In Federal Income Taxation: The Year 2001, Ira B. Shepard, Martin J. Mcmahon Jr.

Florida Tax Review

This current developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the year 2001. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail; only the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed except to the extent that they have either led to administrative rulings and regulations or have affected previously issued rulings and regulations otherwise covered by the outline. The outline focuses primarily …

The Good, The Bad, And The Ugly In Post-Drye Tax Lien Analysis, Steve R. Johnson

Florida Tax Review

In December 1999, the Supreme Court decided Drye v. United States. The Court's unanimous opinion should infuse tax lien litigation with greater clarity and precision.

This article explores whether this promise is being realized. Although Drye was decided only fairly recently, several dozen lower court cases have applied it. Have they done so well? Part II of this article describes Drye and contemporary tax lien analysis in light of it. Part II assesses whether Drye changed the law or just clarified what had been the law but often was misunderstood. Although ammunition exists to fight for either interpretation, I …

It Does Not Compute: Copyright Restriction On Tax Deduction For Developer’S Donation Of Software, William A. Drennan

Florida Tax Review

This Article will consider: (i) the various types of intellectual property rights and the methods for transferring those property rights to charity; (ii)the tax consequences to a charity exploiting those rights;(iii) the various restrictions that apply when claiming an income tax charitable deduction; (iv)the application of the current income tax rules to charitable gifts of patents, trade secrets, trademarks and copyrights in general;(v) the tax treatment of an amateur software developer’s donation of computer software to charity under current law and the proper tax treatment of such donations; and(vi)proposals to change the current rules so that an amateur software developer …

Fairness In International Taxation: The Ability-To-Pay Case For Taxing Worldwide Income, J. Clifton Fleming Jr., Robert J. Peroni, Stephen E. Shay

Florida Tax Review

The ability-to-pay fairness concept is a key factor underlying the historic U.S. policy of relying principally on the income tax to finance federal government expenditures. Indeed a major justification for this reliance, as opposed to significant dependence on consumption levies, is that the income tax is a system for spreading the costs of government in a way that advances fairness by giving substantial deference to comparative ability-to-pay.

Consequently, one would expect tax policy analysts to routinely examine the equity implications of international income tax rules by applying the fairness criterion with the same rigor as in the domestic context. But …

Equity And The Article I Court: Is The Tax Court’S Exercise Of Equitable Powers Constitutional?, Leandra Lederman

Florida Tax Review

Perhaps legislative courts are overlooked because they have no clear place in the study of constitutional law; it is Article III of the Constitution that grants the judicial power of the United States to the United States Supreme Court (Supreme Court)and inferior courts such as the United States Courts of Appeals and the District Courts. Yet Article I courts perform the traditional judicial function of resolving controversies by applying the law to the facts and rendering an opinion. In fact, they resemble Article III courts in most respects, except that their judges lack the salary and tenure protections of Article …

Avoiding Phantom Income In Bankruptcy: A Proposal For Reform, Gregory L. Germain

Florida Tax Review

This paper explores the limitations and uncertainties of the current methods available to accrual method and cash method bankruptcy debtors to attempt to avoid taxation on phantom income which is earmarked for the payment of creditor claims, and points out the need for regulatory reform.

Recent Developments In Federal Income Taxation: The Year 2000, Ira B. Shepard, Martin J. Mcmahon Jr.

Florida Tax Review

This current developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the year 2000. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail; only the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed except to the extent that they have either led to administrative rulings and regulations or have affected previously issued rulings and regulations otherwise covered by the outline. The outline focuses primarily …

Contengencies And The Estate Tax, Wendy C. Gerzog

Florida Tax Review

Currently, the treatment of contingent interests for estate tax purposes varies depending on what Code section is applicable. Consequently, there are instances when contingent interests are included in decedent's gross estate at different values. That is, some are included at the full fair market value of the property; some are included at a value discounted to reflect probabilities; and some are excluded altogether.

Inclusion with valuation adjustments, i.e., a purely mathematical rule, provides the most even treatment of contingencies. With such a rule, the remoteness or minimal value of a contingency is reflected in the general rule of discounting for …

The Widening Gap Under The Internal Revenue Code: The Need For Renewed Progressivity, Vada Waters Lindsey

Florida Tax Review

Many of the lowest income taxpayers receive substantial benefit in the form of the earned income tax credit. The middle class taxpayers are able to exploit many tax incentives, including mortgage deductions, Roth IRAs and educational IRAs. The wealthy benefit from the favorable capital gain tax rates. This country’s tax system has always been based upon a progressive structure. Additional steps need to be taken to ensure progressivity between the lower to middle income taxpayer and higher income taxpayers and to counter other tax benefits provided to the higher income taxpayers that have resulted in a flatter tax structure. Additional …

The Relevance Of Fda Regulation In Medical Device Product Defect Cases, Edward Correia

DePaul Journal of Health Care Law

Medical device product cases typically involve a jury determination whether a product is unreasonably dangerous. If the product has been cleared for marketing by the Food and Drug Administration, it has been through an extensive regulatory process in which the safety of the product is potentially reviewed by experts. Nevertheless, a number of courts have concluded that juries should not hear about FDA regulation in making factual findings regarding liability and damages.

What the FDA concludes about the safety of a product can be extremely relevant to juries in deciding whether to find there was a defective product and whether …

How Confusing! Resolving The Three-Way Circuit Split On The Nominative Fair Use Doctrine, Eric W. Walker

Akron Law Review

Trademark defenses such as descriptive fair use have been codified in the Lanham Act for decades. Despite the practical necessity of nominative fair use, it has yet to be codified into the Lanham Act. While the Supreme Court has offered guidance on descriptive fair use, there is currently no such guidance with respect to nominative fair use. Currently, our best guidance is a confusing three-way Circuit Split on how to approach nominative fair use. Other circuits have largely remained uncertain in how to approach the doctrine or have outright avoided using the doctrine. In analyzing the intricacies of nominative fair …

The Scrivener's Error: How Bankruptcy Judges Overrule Health Experts On Medicare Decisions, Nicolas C. Oehler

Akron Law Review

There is a circuit split over the interpretation of 42 U.S.C. § 405(h), which requires providers to exhaust their remedies with the Department of Health and Human Services (HHS) before proceeding to court. This split originates from a recodification that omitted several jurisdictional grants from § 405(h), leaving courts to decide whether to continue interpreting the statute as Congress intended or begin interpreting the statute’s plain language. Complicating this split, a backlog of claims in HHS’s appeal systems prevents speedy adjudication. This delay leaves providers searching for other adjudicatory options for their Medicare claims, such as bankruptcy courts.

As initially …

Keeping The Faith: How The Fourteenth Amendment Should Protect Against Faithless Electors, Jennifer A. Cranmer

Akron Law Review

Every four years, citizens across the United States vote for a presidential candidate. However, those citizens are actually voting for electors who then vote for the president in the Electoral College on the citizens’ behalf. Electors become faithless when they do not vote for the candidate that they were pledged to vote for. In Chiafalo v. Washington, the Supreme Court upheld the validity of states enacting strict faithless elector laws that require electors to vote for the candidates they were pledged to vote for and impose penalties on electors who fail to do so. Yet many states have failed …

An Essay On Drafting Evidence Legislation And Rules: Challenging The Conventional Wisdom, Edward J. Imwinkelried

Akron Law Review

There have been numerous major efforts to reform and codify American Evidence law. The efforts include the Model Code, the Uniform Rules, the California Evidence Code, and, of course, the Federal Rules of Evidence. The various reform initiatives have attempted to create “an evidence bible for busy trial judges and attorneys.” Of course, to resolve the many common-law splits of authority, the reformers faced substantive evidentiary questions: Should the opponent be permitted to impeach by cross-examining about a bad act that has not resulted in a conviction? Should there be a learned treatise hearsay exception? And should a presumption disappear …

Tax Salience, Escrow, And Support For Property Tax: Findings From A Survey Of South Carolina Voters, Susan Young, Matthew P. Thornburg, David Wilson Steinmeyer

Journal of Political Science

Tax salience has been found to impact tax opposition attitudes in a previous study, and scholars find that tax presentation is a key factor influencing the salience of a tax to those who pay it. We test Cabral and Hoxby’s 2012 hypothesis that homeowners who escrow their property tax payments will express more support for property tax increases than non-escrow taxpayers. Using original data collected from a mailed survey of South Carolina voters our multi-variate regression analysis shows that homeowners who escrow property taxes express more support for increasing school tax than do non-escrow payers. We also find significant knowledge …

Black Lives Matter And The Effects Of A Social Media User's Connection To Differing Ethnic And Racial Backgrounds, Ashley Helfrich, Satoshi Machida

Journal of Political Science

Millions of citizens, including a large number of whites, joined the Black Lives Matter (BLM) movement in the summer of 2020. An important factor that mobilized them toward BLM was the rise of social media. Recognizing the critical importance of social media, the present research explores the link between social media use and citizens’ behavior on the BLM movement in the United States. The focus of the analysis is on the issue of diversity. Because diversity on social networks can expose individuals to more diverse views, one can hypothesize that a higher number of one’s "friends" and followers being from …

Celebrity Politics In The American South: The Case Of Ben "Cooter" Jones, Richard T. Longoria

Journal of Political Science

Celebrities get involved in American politics as activists and candidates for office. The literature suggests that celebrities have many advantages over traditional political candidates. However, the case of Ben Jones, "Cooter" from The Dukes of Hazzard, suggests that fame is not enough to win elections. The political environment is the decisive factor in determining whether a celebrity candidate wins or loses an election. The South’s realignment from Democrat to Republican made it difficult for Democrat Ben Jones to succeed in a changing South. Like other celebrities that lost the fundraising battle Jones lost several bids for office. Celebrities, like Fred …

Entre Madres, Putas Y Buchonas: A Content Analysis Of Narco Shows And Their Representation Of Women, Salma Galvan

Senior Theses

Fatima Cecilia was seven years old when she went missing from the gates of her elementary school in Mexico City. She was last seen on February 11th, 2020, walking hand in hand with an unidentified woman. Four days later, her body was found in a plastic bag; she had been sexually assaulted. This case shook the nation and served as a reminder of the fear and danger that girls face every day. On average, ten women a day are killed in Mexico, half of them by a significant other or someone they knew (Villegas, 2020 p1). Women not only face …