Law Commons^™

Taxing Choices, Tessa R. Davis

Faculty Publications

Tax has a choice problem. At all stages of the making of tax, choice plays a role. Lawmakers consider how tax will impact the range and appeal of choices available to an individual. Scholars critique how tax may drive an individual toward or away from a given choice. Courts craft stories of how an individual had either free or deeply constrained choice, using their perception of the facts to guide their interpretation of tax law. And yet for all the seeming relevance of choice to tax, we have no clear definition of what we mean when we talk about choice …

Democracy Avoidance In Tax Lawmaking, Clint G. Wallace

Faculty Publications

The Tax Cuts and Jobs Act was the most significant tax law in more than three decades, but the strategy for getting it enacted included a variety of maneuvers to avoid public scrutiny. As a result, many taxpayers did not know how they would be affected until they filed their own tax returns more than a year later. This Article identifies this lack of transparency as part of a persistent pathology of avoiding and constraining democratic inputs and responsiveness in U.S. federal tax lawmaking. Indeed, some scholars and policy makers have sought to channel tax lawmaking away from democratically grounded …

Collecting Medical Debt Through South Carolina's Setoff Debt Collection Program: How It Works And Why It Doesn't, Dixie N. Mccollum

South Carolina Law Review

No abstract provided.

Tax Policy And Our Democracy, Clint Wallace

Faculty Publications

No abstract provided.

Equitable Health Savings Accounts, Samuel Estreicher, Clinton G. Wallace

Faculty Publications

This Article offers the first comprehensive legal-policy critique of existing Health Savings Accounts (HSAs), arguing that the current approach is redistributively regressive, thus exacerbating inequality, and also fails to accomplish stated healthcare goals. We propose an alternative—Equitable Health Savings Accounts—which uses cash grants as a tool to address both of these problems. Equitable HSAs are a market-based social program that calibrates size and delivery of a government subsidy to help the least well off and to facilitate participation in healthcare markets. Equitable HSAs can serve as a model for using cash grants to bridge the gap between Republican social policy …

A Human Capital Theory Of Alimony And Tax, Tessa R. Davis

Faculty Publications

The current taxation of alimony is a broken scheme. Severed from any strong theoretical mooring, it draws lines in the sand between property settlement, child support, and alimony. The lack of coherence between the substance of alimony in family law and the tax concept of alimony (“tax alimony”) could be justified on other policy grounds, however. Yet current law, which allows the payor a deduction under §215 and requires inclusion by the recipient per §71, is difficult to interpret, resulting in frequent litigation and costly noncompliance. In short, the current concept of tax alimony fails to satisfy any of the …

Centralized Review Of Tax Regulations, Clinton G. Wallace

Faculty Publications

Centralized oversight of agency policymaking and spending by the President’s Office of Management and Budget is a hallmark of the modern administrative state. But tax regulations have almost never been subject to centralized review. The Trump administration recently proposed to require centralized review of tax regulations, but it is unclear what regulations would be subject to such review or how it would be conducted.

This Article examines the normative desirability of the longstanding approach of exempting tax regulations from centralized review, and the alternative of imposing such review. Scholars and policymakers have provided various incomplete justifications for excepting tax policy …

Congressional Control Of Tax Rulemaking, Clint Wallace

Faculty Publications

The notice and comment process is often touted as a mechanism for establishing political accountability, and providing a check on agency decision-making. Based on a survey of three years of recently proposed tax regulations, this Article shows that many notice-and-comment processes for tax regulations have been ineffective for these purposes. Fully one-third of the time, no one participated. The few participants there are have been heavily weighted towards private interests, which commented on approximately two-thirds of all proposed regulations from 2013 through 2015. In contrast, public interest groups commented on less than 24% of proposed regulations. If the notice and …

Tax And Social Context: Legal Fictions And Tax, Tessa R. Davis

Faculty Publications

No abstract provided.

The Tax-Immigration Nexus, Tessa R. Davis

Faculty Publications

Tax and immigration law have a shared interest in defining community. In order to implement a tax, we must know who belongs to the taxable community. At the same time, immigration law must define and administer the requirements for membership in the national community. Despite the differing objectives of tax and immigration law—raising revenue and deciding who may enter, remain, and become a citizen in the United States, respectively—both of these regimes uses a concept of citizenship to define their respective communities. Starting from this common thread of the relevance of citizenship to both immigration and tax law, this Article …

The Case For Tradable Tax Credits, Clint Wallace

Faculty Publications

This note argues that tradable tax credits offer advantages as compared to other mechanisms the federal government can use to affect social and economic policy. Policymakers should consider the tradable tax credit as a potentially desirable form of tax incentive, rather than a necessity of political compromise as was the case in the enactment of existing tradable credits. First, the note establishes that tradable tax credits can be the economic equivalent of direct spending programs and of refundable tax credits. Next, the note examines a limited but significant set of circumstances in which the tradable tax credit can offer efficiency …

Notional Generosity: Explaining Charitable Donors' High Willingness To Part With Conservation Easements, Josh Eagle

Faculty Publications

No abstract provided.

Giving State Tax Incentives To Corporations: How Much Is Too Much?, Kathleen E. Mcdavid

South Carolina Journal of International Law and Business

No abstract provided.

Construing Wills And Trusts During The Estate Tax Hiatus In 2010, S. Alan Medlin, F. Ladson Boyle

Faculty Publications

Many estate planners have drafted wills and revocable trusts with dispositive provisions based on formulas. These formulas often use language based on transfer tax terminology. For clients who die in 2010, the language used in these formulas will be ambiguous, if not apparently meaningless, because Congress failed to re-institute the estate tax for 2010. The resulting 2010 estate tax hiatus will result in will and revocable trust construction problems for the estates of many decedents who die during the hiatus. Courts will have to use statutory and common law construction methods to attempt to determine the decedent's dispositive intentions. This …

Taxing Structured Settlements, Brant J. Hellwig, Gregg D. Polsky

Faculty Publications

Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt the investment yield imbedded within the structured settlement from federal income taxation. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. Although the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs' lawyers and nonphysically injured tort plaintiffs under general, common-law tax …

The Rehnquist Court: Nineteen Years Of Tax Decisions, F. Ladson Boyle

Faculty Publications

No abstract provided.