Law Commons^™

Tax Treaties, The Constitution, And The Noncompulsory Payment Rule, Reuven S. Avi-Yonah

Law & Economics Working Papers

US Tax treaties have been regarded as self-executing since the first treaty (with France) was ratified in 1932. Rebecca Kysar has argued this raises a doubt on whether the treaties are constitutional, because tax treaties (like other treaties) are negotiated by the executive branch and ratified by the Senate with no involvement by the House, and all tax-raising measures must originate in the House under the Origination Clause (U.S. Const. Art I, section 7, clause 7). Her preferred solution is to make tax treaties non-self executing, but that would reverse the universal practice since 1932, and is therefore unlikely. Moreover, …

Is Gilti Constitutional?, Reuven S. Avi-Yonah

Law & Economics Working Papers

In this article, Avi-Yonah argues that the global intangible low-taxed income regime may be an unconstitutional attempt to tax the foreign-source income of foreign entities, and he offers an alternative.

Modernizing U.S. Tax Code Section 280e: How An Outdated “War On Drugs” Tax Law Is Failing The United States Legal Cannabis Industry And What Congress Can Do To Fix It, David Butter

FIU Law Review

No abstract provided.

Tax Treaties, The Constitution, And The Noncompulsory Payment Rule, Reuven S. Avi-Yonah

Articles

US Tax treaties have been regarded as self-executing since the first treaty (with France) was ratified in 1932. Rebecca Kysar has argued this raises a doubt on whether the treaties are constitutional, because tax treaties (like other treaties) are negotiated by the executive branch and ratified by the Senate with no involvement by the House, and all tax-raising measures must originate in the House under the Origination Clause (U.S. Const. Art I, section 7, clause 7). Her preferred solution is to make tax treaties non-self executing, but that would reverse the universal practice since 1932, and is therefore unlikely. Moreover, …

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 …

Dodging The Taxman: Why The Treasury’S Anti-Abuse Regulation Is Unconstitutional, Linda D. Jellum

University of Miami Law Review

To combat abusive tax shelters, the Department of the Treasury promulgated a general anti-abuse regulation applicable to all of subchapter K of the Internal Revenue Code of 1986. The Treasury targeted subchapter K because unique aspects of the partnership tax laws—including its aggregate-entity dichotomy—foster creative tax manipulation. In the anti-abuse regulation, the Treasury attempted to “codify” existing judicially-created anti-abuse doctrines, such as the business-purpose and economic-substance doctrines. Also, and more surprisingly, the Treasury directed those applying subchapter K to use a purposivist approach to interpretation and to reject textualism.

In this article, I demonstrate that the Treasury exceeded both its …

Will Retroactive Proposition 30 Ever Be Challenged?, Frank J. Doti

Frank J. Doti

Professor Doti's article challenges the constitutionality of California Proposition 30. California voters passed Proposition 30 in 2012 to increase for seven years the income tax rates for those making more than $250,000. The highest tax bracket for individuals with more than $500,000 in taxable income was increased from 9.3% to 12.3%. Proposition 30 was approved by voters on November 6, 2012, but the increased rates were made retroactive—without effective notice—to January 1, 2012.

Retroactive tax laws eviscerate respect for the law and may result in a deprivation of due process of law under the Fifth Amendment of the U.S. Constitution. …

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

Articles

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 essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our 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 …

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To § 5000a Of The Tax Code, Kevin C. Walsh

University of Richmond Law Review

No abstract provided.

"Failure To Pay Any Poll Tax Or Other Tax": The Constitutionality Of Tax Felon Disenfranchisement, Sloan G. Speck

Publications

If the government convicts a citizen under the tax evasion provisions of the Internal Revenue Code, some state disenfranchisement laws preclude that citizen — now a felon — from voting. In this sense, the right to vote depends on the payment of federal income taxes. The Constitution's Twenty-Fourth Amendment, however, guarantees that the federal franchise “shall not be denied or abridged... by reason of failure to pay any poll tax or other tax.” If “other tax” includes income taxes, the text of the Twenty-fourth Amendment appears to prohibit the disenfranchisement of citizens convicted of tax felonies. This Comment argues that …

Taxation-Constitutionality Of Indiana Gross Income Tax Act

Indiana Law Journal

No abstract provided.

The Tennessee Retailers' Sales Tax Act, Stanely D. Rose

Vanderbilt Law Review

The primary consideration in the adoption of a tax by a state is the constitutional framework into which it is to be fitted. Probable litigation is a factor of importance in the choice of a tax. If there are no complicating factors, a simple tax on sales seems to be one of the forms of excise tax most easily sustainable under the Tennessee Constitution. Indeed, Tennessee at an early date had a sales tax which apparently met with court approval.

The most inclusive authority upon which to base an excise tax in Tennessee is the clause which states that "the …