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Tax Law

2014

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Full-Text Articles in Law

When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle Lyon Drumbl Dec 2014

When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle Lyon Drumbl

Scholarly Articles

In this article, Drumbl explores return preparer regulation as a policy matter and questions what would be gained by applying Circular 230 to return preparers.


Mineral Taxation In Zambia, Muna Ndulo Dec 2014

Mineral Taxation In Zambia, Muna Ndulo

Muna B Ndulo

No abstract provided.


The Interaction Of Tax And Non-Tax Treaties, Robert A. Green Dec 2014

The Interaction Of Tax And Non-Tax Treaties, Robert A. Green

Robert A. Green

This background note consists of two parts. Part one provides an overview of the extent to which tax matters are currently covered in non-tax treaties. This discussion focuses on the general agreement on tariffs and trade (GATT)/World Trade Organization (WTO) agreement and the North American free trade agreement (NAFTA) (which cover direct tax measures only to a limited extent) and the European Community (EC) treaty (which covers direct tax measures more broadly). Part two outlines the issues raised when tax matters are covered in non-tax treaties.


The Troubled Rule Of Nondiscrimination In Taxing Foreign Direct Investment, Robert A. Green Dec 2014

The Troubled Rule Of Nondiscrimination In Taxing Foreign Direct Investment, Robert A. Green

Robert A. Green

[Abstract needed]


Justice Blackmun's Federal Tax Jurisprudence, Robert A. Green Dec 2014

Justice Blackmun's Federal Tax Jurisprudence, Robert A. Green

Robert A. Green

During his tenure on the Supreme Court, Justice Blackmun was widely regarded as the Court's authority on tax matters. Justice Blackmun viewed tax law not merely as a technical specialty, but as a microcosm of the legal system. His numerous tax opinions involve a wide range of issues of constitutional law, criminal law, administrative procedure, court procedure, and statutory interpretation. This Article begins by discussing two of Justice Blackmun's tax opinions involving constitutional issues. Justice Blackmun refused to create special constitutional rules for tax cases. Instead, he applied generally applicable principles, but with great sensitivity to how those principles would …


Antilegalistic Approaches To Resolving Disputes Between Governments: A Comparison Of The International Tax And Trade Regimes, Robert A. Green Dec 2014

Antilegalistic Approaches To Resolving Disputes Between Governments: A Comparison Of The International Tax And Trade Regimes, Robert A. Green

Robert A. Green

No abstract provided.


To Hold Or Not To Hold: Magneson, Bolker, And Continuity Of Investment Under I.R.C. Section 1031, J. Martin Burke, Michael K. Friel Dec 2014

To Hold Or Not To Hold: Magneson, Bolker, And Continuity Of Investment Under I.R.C. Section 1031, J. Martin Burke, Michael K. Friel

Michael Friel

This article examines the judicial and administrative development of the two holding requirements under the continuity of investment standards of section 1031 prior to decisions of the Tax Court and the Ninth Circuit in Magneson v. Commissioner and Bolker v. Commissioner, both of which expanded the boundaries of qualified holding and reemphasized the need for guidance from the Treasury or Congress on these issues. Next the article examines the subsequent impact of these decisions. Finally, the article suggests a standard to be followed in the future.


Taxpayers’ Lack Of Standing In International Tax Dispute Resolutions: An Analysis Based On The Hybrid Norms Of International Taxation, Limor Riza Dec 2014

Taxpayers’ Lack Of Standing In International Tax Dispute Resolutions: An Analysis Based On The Hybrid Norms Of International Taxation, Limor Riza

Pace Law Review

This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim …


Don't Leave Money On The Table! Irs [Mis]Computation Of Interest, Robert D. Probasco Dec 2014

Don't Leave Money On The Table! Irs [Mis]Computation Of Interest, Robert D. Probasco

Robert Probasco

No abstract provided.


The Matthew Effect And Federal Taxation, Martin J. Mcmahon Jr. Dec 2014

The Matthew Effect And Federal Taxation, Martin J. Mcmahon Jr.

Martin J. McMahon

The “Matthew Effect” is a synonym for the well-known colloquialism, “the rich get richer and the poor get poorer.” This Article is about the Matthew Effect in the distribution of incomes in the United States and the failure of the federal tax system to address the problem. There has been a strong Matthew Effect in incomes in the United States over the past few decades, with an increasing concentration of income and wealth in the top one percent. Nevertheless, there has been a continuing trend of enacting disproportionately large tax cuts for those at the top of the income pyramid. …


What Would Henry Simons Do?: Using An Ideal To Shape And Explain The Economic Substance Doctrine, Charlene Luke Dec 2014

What Would Henry Simons Do?: Using An Ideal To Shape And Explain The Economic Substance Doctrine, Charlene Luke

Charlene Luke

The law and policy governing tax shelters is incomplete, sometimes contradictory, and occasionally incoherent. Indeed, consensus has yet to emerge even as to which transactions should bear the tax shelter label. Often reform efforts are grounded in theories that are largely external to tax law—for example, economic theory relating to incentives. Fewer approaches rely on intrinsic tax policies, including that most fundamental of income tax principles—the Schanz-Haig-Simons income concept ("H-S"). Under H-S, an income tax base should be expansive, requiring inclusion of an individual's increases in wealth and allowing reductions only for non-personal costs that reduce wealth. This Article seeks …


Risk, Return, And Objective Economic Substance, Charlene Luke Dec 2014

Risk, Return, And Objective Economic Substance, Charlene Luke

Charlene Luke

The economic substance doctrine is a judicial method used to assess transactions suspected of being nothing more than elaborate (and illicit) tax avoidance. Courts vary in their formulation of the doctrine. Generally, the test consists of (1) a subjective inquiry into the taxpayer's motivations for entering the suspect transaction and (2) an objective inquiry into whether the transaction accomplished anything beyond tax effects. Both inquiries frequently revolve around the profit potential of the suspect transaction. In making an objective inquiry into profit, courts focus on the profit potential exclusive of taxes - the pre-tax landscape. This Article suggests that although …


Beating The 'Wrap': The Agency Effort To Control Wraparound Insurance Tax Shelters, Charlene Luke Dec 2014

Beating The 'Wrap': The Agency Effort To Control Wraparound Insurance Tax Shelters, Charlene Luke

Charlene Luke

The first wraparound insurance tax shelter was marketed in the mid-1960s as a means for contract owners to exploit the inconsistency arising from the difference in the tax treatment of investment returns earned inside variable insurance contracts and the economically similar returns available outside such contracts. Federal income tax is deferred (and in some cases eliminated) on the income accruing inside variable insurance products - called inside buildup. In the most recent iteration of the wraparound insurance gambit, insurance companies wrapped private-placement, hedge-fund interests inside variable insurance products in order to allow contract owners to defer tax on the ordinary …


Managing The Next Deluge: A Tax System Approach To Flood Insurance, Charlene Luke, Aviva Abramovsky Dec 2014

Managing The Next Deluge: A Tax System Approach To Flood Insurance, Charlene Luke, Aviva Abramovsky

Charlene Luke

The National Flood Insurance Program (NFIP) has fallen short in fulfilling its promise as a social safety net for flood loss victims. In place of the NFIP, this Article proposes a mandatory social insurance plan that would harness the strengths of the federal taxing authority to provide basic relief for flood losses occurring at an individual’s primary residence. Any plan for addressing flood loss must navigate hotly debated, competing views about government intervention, redistribution, private markets, environmental protection, and property rights. This Article argues that government intervention in flood loss relief is inevitable, at least in the foreseeable future, and …


The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti Dec 2014

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Washington Law Review

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this Article plumbs the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of the federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which …


Taxation And Inequality: A Case For The Vat., Reuven S. Avi-Yonah Dec 2014

Taxation And Inequality: A Case For The Vat., Reuven S. Avi-Yonah

Articles

The author shows that a progressive income tax has had little effect on after-tax income inequality. Social programs, however, do create a more equal society. He proposes a national sales tax—a value-added tax—to finance more such social programs as America's best route to a more equal society.


Corporate Tax Aggressiveness - Recent History And Policy Options, Richard Harvey Nov 2014

Corporate Tax Aggressiveness - Recent History And Policy Options, Richard Harvey

Richard Harvey

No abstract provided.


Irs Tax Relief - Tips For Taxpayers - Tax Relief Programmes, Lissa Coffey Nyu School Of Law Nov 2014

Irs Tax Relief - Tips For Taxpayers - Tax Relief Programmes, Lissa Coffey Nyu School Of Law

LissaCoffey

IRS TAX RELIEF - TIPS FOR TAXPAYERS - TAX RELIEF PROGRAMMES ... it seems many of us look for ways to get more income back from the Internal Revenue Service (IRS) ... IRS Tax Relief Help ... will spot preventing the lies and tricks that agents sometimes use to try and cheat taxpayers who need vital reduced back taxes. Back Taxes : Settle Tax Debt and IRS Problems. Expiration of Back Taxes; IRS Help; IRS Tax Relief FAQs; Back Taxes: Settle Tax Debt and IRS Problems Owe IRS Back Taxes? ... Once an IRS Payment Plan (also known as an …


Getting Physical: Excluding Injury Awards Under The New Section 104(A)(2), J. Martin Burke, Michael K. Friel Nov 2014

Getting Physical: Excluding Injury Awards Under The New Section 104(A)(2), J. Martin Burke, Michael K. Friel

Michael Friel

This article analyzes the 1996 amendments to section 104(a)(2) of the Internal Revenue Code. The authors argue that while section 104(a)(2) was in need of remedy, the remedy chosen is both insupportable from the standpoint of tax policy and problematic in terms of administrability. Part II of the article traces the recent history of the statute’s judicial construction. Part III discusses the provisions of the 1996 amendments. Part IV demonstrates the impact of the 1996 amendments on dignitary torts and highlights policy and interpretational problems associated with the amended provision. The article concludes with a proposal for a better remedy.


A Framework For An Informed Study Of The Realistic Role Of Tax In A Development Agenda, Yariv Brauner Nov 2014

A Framework For An Informed Study Of The Realistic Role Of Tax In A Development Agenda, Yariv Brauner

Yariv Brauner

This article builds on the insights of this development research to develop a new agenda for tax incentives (and equivalent tax measures), the research of their merits when used by developing countries, and their optimal design. The stated goal of these incentives is to attract foreign direct investment, and ultimately enhance economic growth and promote development. Almost all countries use such tax incentives, and business interests strongly support and even demand their use, yet, economic research in general, and the international economic organizations in particular, have been skeptical about their effectiveness." Tax incentives are not only ubiquitous, but also very …


Integration In An Integrating World, Yariv Brauner Nov 2014

Integration In An Integrating World, Yariv Brauner

Yariv Brauner

During the second half of the last century, many countries gradually replaced their so-called classical corporate tax regimes, under which corporate earnings were taxed twice -- once in the hands of the corporation, and again when distributed to corporate shareholders as dividends -- with an integrated regime (imputation), which taxed such earnings only once. The driving force behind this trend was the expectation of significant efficiency gains. This clear and gradual trend has been abruptly reversed with the turn of the century. The phenomenon we call globalization, and in particular the proliferation of cross-border business and investment, has materially contributed …


Value In The Eye Of The Beholder: The Valuation Of Intangibles For Transfer Pricing Purposes, Yariv Brauner Nov 2014

Value In The Eye Of The Beholder: The Valuation Of Intangibles For Transfer Pricing Purposes, Yariv Brauner

Yariv Brauner

This article assesses the desirability of our current, arms' length based, transfer pricing regime by analyzing its theoretical and practical effectiveness in application to transfers of intangibles. A detailed analysis of the practice of valuation of intangibles, which is the key component in the application of this regime, exposes its weaknesses that result in undesirable market incentives. These incentives create a strong bias in favor of large multinational enterprises, yet, even if one favored such bias, it is achieved using an uncontrollable, costly and wasteful legal mechanism. The article particularly criticizes the regime's disregard of the unique characteristics of intangibles …


Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch Nov 2014

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

Karen Burke

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 for transfer …


Cobra Strikes Back: Anatomy Of A Tax Shelter, Karen C. Burke, Grayson M.P. Mccouch Nov 2014

Cobra Strikes Back: Anatomy Of A Tax Shelter, Karen C. Burke, Grayson M.P. Mccouch

Karen Burke

Paul Daugerdas gained notoriety for himself and his erstwhile firm, Jenkens & Gilchrist, as the designer of a tax shelter that uses contingent liabilities to generate artificial tax losses on a grand scale. The basic shelter transaction is surprisingly simple. In essence, it uses offsetting options to inflate the basis of property that is distributed by a partnership and then contributed to and sold by another partnership, resulting in a large tax loss without any corresponding economic loss. In principle, this type of shelter could be replicated indefinitely and generate unlimited tax losses. Mr. Daugerdas is by no means unique. …


International Trade And Tax Agreements May Be Coordinated, But Not Reconciled, Yariv Brauner Nov 2014

International Trade And Tax Agreements May Be Coordinated, But Not Reconciled, Yariv Brauner

Yariv Brauner

A recent WTO case held the U.S.' export tax subsidies illegal. Despite strong political resistance, which fed a long and costly legislative process, the U.S. recently repealed these subsidies. This case and the U.S. reaction revealed that although the U.S. is the single super economic power, it is not as dominant a player as some portray it. The case also shed light on the tension between the present international trade and tax regimes and the difficulty of applying WTO law to income tax measures. This tension did not escalate earlier mainly because countries tended not to use their income tax …


Cobra Strikes Back: Anatomy Of A Tax Shelter, Karen C. Burke, Grayson M.P. Mccouch Nov 2014

Cobra Strikes Back: Anatomy Of A Tax Shelter, Karen C. Burke, Grayson M.P. Mccouch

Grayson McCouch

Paul Daugerdas gained notoriety for himself and his erstwhile firm, Jenkens & Gilchrist, as the designer of a tax shelter that uses contingent liabilities to generate artificial tax losses on a grand scale. The basic shelter transaction is surprisingly simple. In essence, it uses offsetting options to inflate the basis of property that is distributed by a partnership and then contributed to and sold by another partnership, resulting in a large tax loss without any corresponding economic loss. In principle, this type of shelter could be replicated indefinitely and generate unlimited tax losses. Mr. Daugerdas is by no means unique. …


Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch Nov 2014

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

Grayson McCouch

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 for transfer …


Are Cryptocurrencies 'Super' Tax Havens?, Omri Y. Marian Nov 2014

Are Cryptocurrencies 'Super' Tax Havens?, Omri Y. Marian

Omri Y Marian

I describe the mechanisms by which cryptocurrencies — a subcategory of virtual currencies — could replace tax havens as the weapon-of-choice for tax-evaders. I argue such outcome is reasonably expected in the foreseeable future due to the contemporary convergence of two processes. The first process is the increasing popularity of cryptocurrencies, of which Bitcoin is the most widely recognized example. The second process is the transformation of financial intermediaries to agents in the service of tax authorities, as part of the fight against offshore tax evasion. Financial institutions are faced with increased governmental pressure to deliver information about account holders, …


Meaningless Comparisons: Corporate Tax Reform Discourse In The United States, Omri Y. Marian Nov 2014

Meaningless Comparisons: Corporate Tax Reform Discourse In The United States, Omri Y. Marian

Omri Y Marian

This article examines the role that international comparisons play in current corporate tax reform discourse in the United States. Citing the need to make the U.S. corporate tax system more competitive, comparisons are frequently used to assess other jurisdictions' tax-competitiveness, and many legislative proposals are supported by such comparative arguments. Examining such discourse against the background of several theoretical approaches to comparative law, this article argues that, to the extent that comparisons are aimed at providing guidance for prospective reform, this purpose is not well served. Participants in the corporate tax reform discourse, from both sides of the aisle, lack …


Women's, Men's And Children's Equalities: Some Reflections And Uncertainties, Nancy E. Dowd Nov 2014

Women's, Men's And Children's Equalities: Some Reflections And Uncertainties, Nancy E. Dowd

Nancy Dowd

One of the most striking ideas that Edward J. McCaffery suggests in Taxing Women is that equality, of the right sort, must be thought of in gendered terms. We must relinquish the idea that we can find or declare some neutral principle that will achieve the goal of equality, particularly with respect to the relationship between work and family, because the social context makes it impossible. Rather, we need to devise gender-specific strategies to achieve equality, even if they are couched in gender-neutral language. In my recent work examining single parent families, I have come to much the same conclusion: …