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Articles 1 - 13 of 13
Full-Text Articles in Law
Living By The Initiative And Dying By The Initiative, Steve R. Johnson
Living By The Initiative And Dying By The Initiative, Steve R. Johnson
Scholarly Publications
A significant fiscal development in recent decades in many states has been revision of tax laws and policy not by legislatures but by voters through the initiative process. Initiatives often have been used to restrain the growth of taxes and spending, and to that extent the owners of wealth, property, and income have benefitted from initiatives. Among the many examples of controversial and important state tax and spending initiatives, one may think of the Taxpayer Bill of Rights in Colorado, the supermajority requirement for tax increases in Nevada, and of course Proposition 13 in California.
However, that gate swings both …
The 'Absurd Results' Doctrine In State And Local Cases, Steve R. Johnson
The 'Absurd Results' Doctrine In State And Local Cases, Steve R. Johnson
Scholarly Publications
A statute will not be applied according to the literal meaning of its words if to do so would produce absurd results. Cases considering this principle have never been in short supply, but the rule has appeared in a striking number of cases in recent months. Accordingly, it is timely to explore this doctrine in this installment of Interpretation Matters.
The first part describes the doctrine generally. The second part identifies a critical question – and point of dispute – about the doctrine: What results can be considered to be absurd enough for the doctrine to apply? The third part …
The Sixth Amendment And Expert Witnesses In Criminal Tax Cases, Steve R. Johnson
The Sixth Amendment And Expert Witnesses In Criminal Tax Cases, Steve R. Johnson
Scholarly Publications
Recently, in the Baxter case, a federal district court vacated the sentence imposed as a result of a guilty plea in a criminal tax case. The court held that the failure of defense counsel to retain the services of an expert in tax crimes sentencing violated the defendant’s Sixth Amendment right to effective representation.
This installment of the Tax Crimes column explores Baxter. Part A briefly notes the civil and criminal tax contexts in which tax experts are used. Part B describes Baxter and its holding. Part C asks whether defense counsel in criminal tax cases should always retain a …
Easterday And The Erosion Of The Financial Inability Defense, Steve R. Johnson
Easterday And The Erosion Of The Financial Inability Defense, Steve R. Johnson
Scholarly Publications
Several tax crimes in the code involve failure to pay known or assessed tax liabilities. For generations, there has been controversy over whether a taxpayer’s lack of funds from which to make payment should preclude conviction for those crimes. The potency of the financial inability defense1 has waned over the years. The recent decision of a divided Ninth Circuit panel in Easterday continues that trend, but the defense should still have life in some situations and some courts.
Part I of this report describes the tax crimes to which a financial inability defense may be relevant. Part II discusses Easterday. …
Legislative Rhetoric, Or How To Oppose Anything, Steve R. Johnson
Legislative Rhetoric, Or How To Oppose Anything, Steve R. Johnson
Scholarly Publications
This installment of the column involves a change of focus. Instead of looking at the end of the legislative process – how courts interpret enacted statutes – this installment looks at the phase at which bills are enacted by or defeated in the legislature. However, the two phases have underlying similarities. As we will see, arguments used in legislative advocacy have counterparts in statutory interpretation advocacy. Our topic is particularly timely. Proposals to revise state and local tax statutes are always with us, of course, but recent budgetary stresses have increased both the number and significance of those proposals.
This …
Substantial Compliance, Steve R. Johnson
Substantial Compliance, Steve R. Johnson
Scholarly Publications
There are many exceptions to the juvenile saw that “close counts only in horseshoes and hand grenades.” State and local tax practice may be among those exceptions – depending on possible application of the doctrine of substantial compliance. The tax law often makes the legal validity of one action contingent on a party having taken preliminary steps. Strict compliance – having to take those steps in precisely the right way at precisely the right time – is not always necessary. Courts sometimes hold that substantial compliance – “close enough” - suffices.
This installment of Interpretation Matters discusses the substantial compliance …
Equitable Tolling In State And Local Tax Cases, Steve R. Johnson
Equitable Tolling In State And Local Tax Cases, Steve R. Johnson
Scholarly Publications
Tax statutes, like statutes of all kinds, frequently prescribe dates or times by which actions are to be taken. If the actor – either the taxpayer or the state or local revenue authority – fails to act by the specified date or time, the actor sometimes can be rescued by any of several legal and equitable mechanisms.
This installment of Interpretation Matters addresses one of those mechanisms: the doctrine of equitable tolling. Part I below describes the doctrine generally and gives examples of successful use of the doctrine by taxpayers and by revenue authorities. Part II identifies possible barriers to …
Supertext And Consistent Meaning, Steve R. Johnson
Supertext And Consistent Meaning, Steve R. Johnson
Scholarly Publications
Opponents of textualism as an approach to statutory interpretation sometimes deride it as myopic. The textualist, those opponents contend, puts on blinders, narrowing the perhaps vast panorama of possible perspectives on meaning to a narrow slice of the whole. Modern textualists beg to differ. They view that criticism as reductionist and are often quick to distinguish textualism from mere literalism. Thus, the leading contemporary textualist jurist – U.S. Supreme Court Justice Antonin Scalia – cautions:
Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute .... [T]he good textualist …
The Two Kinds Of Legislative Intent, Steve R. Johnson
The Two Kinds Of Legislative Intent, Steve R. Johnson
Scholarly Publications
What is a court trying to do when it interprets or applies a statute? This installment of my column looks at two different answers to that question, doing so through the lens of cases involving state and local tax statutes. Both approaches sometimes use the language of “intent,” so it becomes important for the state-local tax practitioner to understand, and to accommodate his or her arguments to the kind of intent that actually controls in the particular jurisdiction.
The first part describes the two approaches: subjective intent and objectified intent. The second part describes a middle position that some courts …
Interpreting State Tax Exemptions, Deductions, And Credits, Steve R. Johnson
Interpreting State Tax Exemptions, Deductions, And Credits, Steve R. Johnson
Scholarly Publications
Modern tax statutes serve many purposes beyond simply raising revenue, and the contours of those statutes are shaped by many (and sometimes conflicting) economic, social, and political objectives. Legislatures choose a variety of structural mechanisms – including exemptions, deductions, and credits – to advance those policy goals. Sometimes those features are drafted with less than meticulous precision. Other times, business practices have evolved since enactment of the provisions. In either event, revenue agencies and courts are frequently required to interpret those provisions.
This installment of “Interpretation Matters” concerns one such principle of interpretation: The canon that exemptions, deductions, and credits …
Pro-Taxpayer Interpretation Of State-Local Laws, Steve R. Johnson
Pro-Taxpayer Interpretation Of State-Local Laws, Steve R. Johnson
Scholarly Publications
Sometimes, from a taxpayer’s perspective, it is better to be challenging a state or local tax determination than a federal tax determination. One reason for that is the canon that “[tax] statutes are to be construed most favorably for the taxpayer.” Scores, if not hundreds, of federal tax cases espoused that principle, especially during the 1890s to 1940s. However, the principle fell into disuse at the federal level in ensuing decades and, indeed, was replaced by prorevenue canons. A seeming attempt to revivify the canon at the federal level earlier this decade appears to have withered on the vine. In …
Hedging The Irs -- A Policy Justification For Excluding Liability And Insurance Proceeds, Jeffrey H. Kahn
Hedging The Irs -- A Policy Justification For Excluding Liability And Insurance Proceeds, Jeffrey H. Kahn
Scholarly Publications
Uncertainty about tax results is an ever-present obstacle to business transactions despite the extensive number of Internal Revenue Code sections and Treasury Regulations. Some insurance companies now provide an insurance product to protect taxpayers against adverse tax consequences from proposed transactions. Ironically, this new insurance product, labeled “tax insurance,” poses uncertain tax consequences itself This Article argues that if the adverse tax consequences arise (that is, the taxpayer has additional tax liability) and the insurance company is contractually required to cover that liability, the tax insurance proceeds are not includable in the insured’s gross income. As part of the reasoning …
The Work Product Doctrine And Tax Accrual Workpapers, Steve R. Johnson
The Work Product Doctrine And Tax Accrual Workpapers, Steve R. Johnson
Scholarly Publications
In its rehearing of Textron, the First Circuit has an opportunity to rectify an error and curb unwise recent expansion of work product protection for tax accrual workpapers. In August 2007, a district court denied the government’s petition for enforcement of an IRS summons on Textron Inc. and its subsidiaries for tax accrual workpapers in connection with IRS examinations of the taxpayers’ 1998 to 2001 income tax returns. A divided panel of the First Circuit affirmed in January 2009. In March 2009, the First Circuit withdrew the panel opinion and dissent, and it set the case for en banc hearing …