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Crisis-Driven Tax Law: The Case Of Section 382, Albert H. Choi, Quinn Curtis, Andrew T. Hayashi Jan 2019

Crisis-Driven Tax Law: The Case Of Section 382, Albert H. Choi, Quinn Curtis, Andrew T. Hayashi

Articles

At the peak of the 2008 financial crisis, the Internal Revenue Service (IRS) issued Notice 2008–83 (the Notice), administrative guidance that limited Internal Revenue Code (the Code) section 382, an important tax rule designed to discourage tax-motivated acquisitions. Although styled as a mere interpretation of existing law, the Notice has been widely viewed as an improper exercise of the IRS’s authority that undermined its legitimacy. But did the Notice work? There were many extraordinary interventions during the financial crisis that raised questions about eroding the rule of law and the long-term destabilizing effects of bail­outs. In a financial crisis, regulators …


Reworking The Revolution: Treasury Rulemaking & Administrative Law, David Berke May 2018

Reworking The Revolution: Treasury Rulemaking & Administrative Law, David Berke

Michigan Journal of Environmental & Administrative Law

How administrative law applies to tax rulemaking is an open and contested question. The resolution of this question has high stakes for the U.S. tax system. The paradigm is shifting away from so-called “tax exceptionalism”—where Treasury action is considered effectively exempt from the Administrative Procedure Act (the “APA”) and related administrative law doctrines. This paradigm-shift is salutary. However, currently prevailing anti-exceptionalist theory—an administrative framework for tax that is rapidly gaining credence within both the federal judiciary and the legal academy—threatens to destabilize the U.S. tax system. This formalistic approach to administrative law in tax rulemaking has the potential to invalidate …


Tax Symposium: Introduction, Reuven S. Avi-Yonah Jan 2017

Tax Symposium: Introduction, Reuven S. Avi-Yonah

Michigan Journal of International Law

This issue of MJIL features four out of the many outstanding papers that were presented at a conference on Taxation and Citizenship held at Michigan Law in October 2015 and co-organized by Allison Christians and myself. The impetus for the conference was the realization that the unique U.S. practice of taxing its citizens on worldwide income, regardless of where they reside, has become a major flashpoint in the relationship between the United States and its citizens living overseas, and sometimes also between the United States and the country those citizens resided in.


Delegating Tax, James R. Hines Jr., Kyle D. Logue Oct 2015

Delegating Tax, James R. Hines Jr., Kyle D. Logue

Michigan Law Review

Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …


No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones Apr 2015

No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones

Articles

If the Supreme Court rules against the government in King v. Burwell, insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges. The pain could be felt within weeks. Without subsidies, an estimated eight or nine million people stand to lose their health coverage. Because sicker people will retain coverage at a much higher rate than healthier people, insurance premiums in the individual market will surge by as much as fifty percent. Policymakers will come under intense pressure to mitigate the fallout from a government loss …


Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost Jan 2015

Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost

Articles

The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …


Tax Exceptionalism: Wanted Dead Or Alive, Gene Magidenko Jan 2012

Tax Exceptionalism: Wanted Dead Or Alive, Gene Magidenko

University of Michigan Journal of Law Reform Caveat

Tax law has just not been the same since January 2011. Did Congress pass earthshaking legislation affecting the Internal Revenue Code? Did the IRS dramatically change regulations? If only it were that exciting. Instead, eight jurists sitting at One First Street in our nation’s capital transformed tax law in a less bloody, but no less profound, way. The thought must have gone through many a tax mind – is tax exceptionalism dead?


Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi Dec 2010

Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi

University of Michigan Journal of Law Reform

The Internal Revenue Service occasionally creates rules, notices, or regulations that allow taxpayers to pay less than they would under a strict reading of the law. Sometimes, however, these IRS actions are directly contrary to federal law and have significant economic impact. Challenging favorable IRS actions through litigation will likely be unsuccessful because no plaintiff can satisfy the requirements for standing. To address this situation, this Note proposes a statutory reform to provide competitors with standing to challenge favorable IRS actions in court.


Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue Jun 2007

Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue

Articles

This article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the substance of the tax law is uncertain - that is, when the precise application of the Internal Revenue Code to a particular situation is not clear. In such situations, a number of interesting questions arise. This article will consider two of them. First, as a normative matter, how certain should taxpayers be before they rely on a particular interpretation of a substantively uncertain tax rule? If a particular position is not clearly prohibited but neither is it clearly allowed, what …


Tax Law Uncertainty And The Role Of Tax Insurance, Kyle D. Logue Jan 2005

Tax Law Uncertainty And The Role Of Tax Insurance, Kyle D. Logue

Articles

In the broadest sense, this is an article about legal or regulatory uncertainty and the role that private and public insurance can play in managing it. More narrowly, the article is about tax law enforcement and the familiar if ill-defined distinctions between tax evasion, tax avoidance, and abusive tax avoidance. Most specifically, the article is about a new type of tax risk insurance policy, sometimes called tax indemnity insurance or transactional tax risk insurance that provides coverage against the risk that the Internal Revenue Service (Service) will disallow a taxpayer-insured's tax treatment of a particular transaction. The question is whether …


The Income Tax Treatment Of Social Welfare Benefits, Jonathan Barry Forman Jul 1993

The Income Tax Treatment Of Social Welfare Benefits, Jonathan Barry Forman

University of Michigan Journal of Law Reform

Part I of this Article describes the major social welfare programs in the United States. Part II outlines the basic structure of the federal income tax and describes how social welfare benefits are treated by the income tax system. Finally, Part III surveys some recent proposals to tax particular social welfare benefits and considers the arguments for and against taxing such benefits. The Article concludes that the need for new revenue sources will push the federal government to reconsider the tax treatment of social welfare benefits.


Omnibus Taxpayers' Bill Of Rights Act: Taxpayers' Remedy Or Political Placebo?, Creighton R. Meland Jr. Jun 1988

Omnibus Taxpayers' Bill Of Rights Act: Taxpayers' Remedy Or Political Placebo?, Creighton R. Meland Jr.

Michigan Law Review

This Note examines whether the bill, as drafted, addresses the problems which spawned it. It anticipates the bill's effects on existing law and identifies areas where the bill would likely create new problems in the administration of the federal tax laws. It further identifies areas where the bill would solve problems. This Note concludes that (1) the bill's audit provisions will not significantly expand taxpayer rights, and may in fact disrupt the audit process; (2) except for safeguards for installment agreements, the bill's attempts to reform IRS collections procedures will not achieve its intended objectives; and (3) the bill's damages …


Irs Denials Of Charitable Status: A Social Welfare Organization Problem, Michigan Law Review Dec 1983

Irs Denials Of Charitable Status: A Social Welfare Organization Problem, Michigan Law Review

Michigan Law Review

This Note argues that the courts and the Service should recognize social welfare organizations as charitable and, consequently, contributions to such organizations should be tax deductible. Part I describes the Service's position and sets forth the statutory arguments supporting it. Part II raises two objections to the Service's position: (1) the distinction between social welfare organizations and charitable organizations lacks an adequate statutory justification, and (2) this distinction produces unpredictable and arbitrary results. Part III proposes that all social welfare organizations be accorded charitable status under subsection 50l(c)(3). This proposal would eliminate the arbitrary results now reached by the Service, …


The Internal Revenue Service's "Hart Wright Method", Mortimer Caplin Dec 1983

The Internal Revenue Service's "Hart Wright Method", Mortimer Caplin

Michigan Law Review

A Tribute to L. Hart Wright


Penalizing Bribery Of Foreign Officials Through The Tax Laws: A Case For Repealing Section 162 (C)(1), Christopher Alan Lewis Oct 1977

Penalizing Bribery Of Foreign Officials Through The Tax Laws: A Case For Repealing Section 162 (C)(1), Christopher Alan Lewis

University of Michigan Journal of Law Reform

Most commentary on these congressional attempts to use tax laws to control the ethics of overseas enterprises has centered either on the effectiveness of these provisions or on the burdens and difficulties involved with their implementation. This article, while discussing these issues, is concerned primarily with the conceptual justifications and the direct economic effects of these tax provisions. The article contends that section 162(c)(1) and the pertinent provisions of the Tax Reform Act of 1976 are disguised penalties which often operate arbitrarily and unfairly and concludes that they should be repealed in favor of more equitable and effective deterrents.


Taxpayer Rights In Noncustodial Irs Investigations After Beckwith V. United States, Curtis L. Christensen Jan 1977

Taxpayer Rights In Noncustodial Irs Investigations After Beckwith V. United States, Curtis L. Christensen

University of Michigan Journal of Law Reform

The recent Supreme Court decision in Beckwith v. United States, holding that Miranda does not extend to noncustodial tax investigations, has important implications with respect to the News Release doctrine and the involuntary consent grounds considered in motions to suppress evidence. This article will examine Beckwith and its potential significance with respect to these other doctrines, discussing the factors which the IRS and the courts should consider in order to assure fair treatment of taxpayers during investigations.


Scope Of Disclosure Of Internal Revenue Communications And Information Files Under The Freedom Of Information Act, Peter R. Spanos Jan 1975

Scope Of Disclosure Of Internal Revenue Communications And Information Files Under The Freedom Of Information Act, Peter R. Spanos

University of Michigan Journal of Law Reform

This article will discuss the proper scope of disclosure under the Freedom of Information Act of the files and administrative and policy materials of the IRS, with particular attention to the following currently contested issues: (1) the extent to which IRS guideline documents and private letter rulings are subject to disclosure; (2) the proper scope of the FOIA exemption for "interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" as applied to the IRS; and (3) the scope of the exemption for "investigatory records …


The Realization Requirement And Tax Avoidance, E. George Rudolph Apr 1964

The Realization Requirement And Tax Avoidance, E. George Rudolph

Michigan Law Review

Consider, for a moment, the plight of G. E. Hall. During 1947 Hall incurred a gambling debt to the Las Vegas Club variously estimated at between 145,000 and 478,000 dollars. The debt came into the sole ownership of one Binion, a partner in the club, and was eventually settled by Hall transferring to Binion an undivided one-half interest in certain cattle located in Arizona and Montana. Thereafter, Hall and Binion engaged in the ranching business as partners. At this point the Internal Revenue Service came forward with a claim that Hall, in the course of this disastrous chain of events, …


Taxation - Federal Income Tax - Published Opinions Of The New Tax Officialdom: A Review, David G. Hill S.Ed. Apr 1961

Taxation - Federal Income Tax - Published Opinions Of The New Tax Officialdom: A Review, David G. Hill S.Ed.

Michigan Law Review

President John F. Kennedy has appointed as his principal tax officials two men who have long been on record as proponents of tax reform. This comment is a collection and, to a small extent, an analysis of the opinions found in their published statements on taxation. Stanley S. Surrey, fifty-year-old Assistant Secretary of the Treasury for Tax Policy, first served with the Treasury Department in 1937. He was Tax Legislative Counsel from 1942 to 1947 and later served as Special Counsel to the House Ways and Means Subcommittee on Administration of the Revenue Laws. He also has served as Reporter …


Tax Accrual Accounting For Contested Items (Without The Benefit Of I.R.C. Sections 452 And 462), Harrop A. Freeman Mar 1958

Tax Accrual Accounting For Contested Items (Without The Benefit Of I.R.C. Sections 452 And 462), Harrop A. Freeman

Michigan Law Review

A spate of cases in 1956-1957 has required us to examine again the tax handling of accrual accounting in an attempt to find some way through the judicial morass. This study is concerned primarily with proper income and expense accrual reporting in cases in which some form of controversy exists or may exist between the taxpayer and another party concerning the item to be accrued.