Law Commons^™

The Rescission Doctrine: Everything Old Is New Again, Allen Sparkman

Allen Sparkman

This paper considers rescissions--attempts by parties to undo a transaction and have that undoing respected for federal tax purposes. Some commentators have questioned the legal basis for the rescission doctrine as applied by the Internal Revenue Service, and others have argued for expansion or restriction of the doctrine. This paper traces the development of the rescission doctrine, examines a critical article that argues that there is no legal precedent that truly supports the rescission doctrine as it is currently applied by the Internal Revenue Service, considers whether there exists sufficient legal authority for the doctrine as applied by the Internal …

Exotic Dancing: Taxable Gyrations Or Exempt Art, John O. Hayward

John O. Hayward

Exotic dancers usually embroil themselves in censorship battles with local authorities. But recently they have drawn the attention of tax authorities who have tussled with the owners of so-called “gentlemen’s clubs” over whether the exotic dancing performed in their establishments are subject to taxation. This paper examines several recent cases where state authorities choose to tax exotic dancing while at the same time exempting what some jurists regard as comparable choreographic performances. In the opinion of these commentators, the tax authorities exhibited a bias against low-brow artistic expression, thus engaging in impermissible content discrimination. It advances the proposition that judges …

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 …

Renewable Energy: Where We Are Now And How Renewable Energy Investment And Development Can Be Expanded, Kevin M. Walsh

Kevin M Walsh

The renewable energy field is currently stifled because many renewable energy developments require tax equity investors to provide additional funds to get the project off the ground and running. The Code provides tax credits to incentivize investors to invest. Currently, the Investment Tax Credit (“ITC”) is the only available credit left for renewable projects placed in service from 2014 on. Tax credits are a step in the right direction to encourage renewable investment; however, the credits are limited in application mostly to large financial institutions. Moreover, investments into one specific renewable energy project can be risky because there is no …

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 …

The Intriciacies Of Tax And Globalization, Sagit Leviner Dr.

Sagit Leviner Dr.

This article reviews Avi-Yonah, Sartori, and Marian’s Global Perspectives on Income Taxation Law (Oxford, 2011). It outlines the book’s key features and strengths in the quest for understanding the effect of globalization on taxation. In this process, the article also looks into available data to explore global trends in taxation over the past three and a half decades to evaluate whether and to what extent globalization leads to convergence or divergence of national tax policies. The article concludes that as Global Perspectives on Income Taxation Law illustrates, while globalization may lead to at least some observed trends in taxation—including the …

Curb Your Enthusiasm For Pigouvian Taxes, Victor Fleischer

Victor Fleischer

Pigouvian (or "corrective") taxes have been proposed or enacted on dozens of products and activities that may be harmful in excess: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of using Pigouvian taxes more frequently to address serious social harms.

This enthusiasm for Pigouvian taxes should be tempered. A Pigouvian tax is easy to design—as a uniform excise tax—if one assumes that each individual causes the same amount of harm with each incremental increase in activity on …

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; …

Less Is More: Applying A Modified Reasonable Compensation Standard To Eliminate The Inconsistencies In The Payroll And Net Investment Income Tax Bases, John S. Treu

John S. Treu

The original policy for the implementation of payroll taxes was to impose a tax on wages as both a funding mechanism for, and a limitation to, qualifying for social security. However, the self-employment tax base developed severe inconsistencies with this original policy and among different tax entities by including certain returns on capital investments in the tax base. At present, different payroll tax obligations arise for similarly situated tax payers based solely on the type of entity the owner elects to be taxed as under the check-the-box regulations. These inconsistencies resulted from misguided efforts by congress and the treasury to …

Comments On Guidance For Tax-Exempt Social Welfare Organizations On Candidate-Related Political Activities, Brian D. Galle, Donald B. Tobin

Brian D. Galle

The Notice is a good first step. It creates bright-line standards that are easy to apply and that will eliminate much of the gray area regarding permissible political activity. Clearer lines will reduce the discretion on the part of the IRS. By decreasing the IRS’s discretion, the regulation will reduce the opportunity for the IRS to be used as a political tool in an Administration’s tool box. However, the Notice does not go far enough. Congress has established a regulatory regime that has as its central purpose the disclosure of any significant campaign contributions by individuals or firms. In recent …

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 …

Is There A Justification For Imposing Criminal Liability On Corporate Managers In Tax Legislation?, Karnit Malka

Karnit Malka

No abstract provided.

Exhibit A-April 21, 2014 Dol Letter To Modes, David Randall Jenkins

David Randall Jenkins

This exhibit evidences the Obama administration's pressure on the Missouri legislature not to bring its unemployment act into compliance with the FUTA provisions.

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 …

Green Building Geography Across The United States: Does Governmental Incentives Or Economic Growth Stimulate Construction?, Darren Prum, Tetsuo Kobayashi

Darren A. Prum

As green building activity continues to rise across the country, some state governments decided to create incentives that would motivate developers to voluntarily pursue third party certification for their real estate projects in order to assist in meeting sustainability and environmental goals. Despite the growing number of studies in green buildings, the geography of green buildings and sustainable construction only includes a few studies, which emphasize the lack of green building research from the spatial perspective and their relevance to public policies the lack of green building research from the spatial perspective and their relevance to public policies. This study …

Set Up For Abduction And Extortion By The Irs: Does The Reporting Of Interest Paid On U.S. Bank Deposits Undermine The Government's Obligation To Avoid Instigating Terrorism By Foreign Criminal Gangs And Drug Cartels?, Darren Prum, Chad G. Marzen

Chad G. Marzen

The Internal Revenue Service recently overturned 90 years of United States foreign and tax policy by finalizing and codifying its efforts to report interest income earned at domestic banks for accounts held by nonresident aliens. While the IRS felt its need to collect the data and revenue outweighs concerns raised against the proposal, the rule change has broad ramifications in the areas of tax, commerce, international policy and law, and the war against transnational criminal organizations and terrorism. This article argues that the rule change has the potential to wreak havoc on a fragile economic recovery by leading to a …