Law Commons^™

Targeted Reform Of Commercialized Intercollegiate Athletics, Matt Mitten, Jim Musselman, Bruce Burton

Matt Mitten

This article observes that American society’s passion for intercollegiate sports competition is an extremely powerful, naturally evolved cultural force. The marketplace responds to cultural forces, and the commercialization of college sports directly reflects the marketplace realities of our society. For example, colleges and universities rationally utilize their intercollegiate athletic programs, particularly NCAA Division 1 FBS football and basketball, as a means to achieve a wide range of legitimate objectives of higher education. Thus, the authors advocate that university athletic department revenues should continue to be exempt from federal taxation, specifically the unrelated business income tax (UBIT), despite the increasingly commercialized …

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law – both before and after the landmark Employment Division v. Smith decision – reveals that the prohibition …

No Reparations Without Taxation, Carlton Waterhouse, Andre Smith

Carlton Waterhouse

ABSTRACT In the article, Professors Andre Smith and Carlton Waterhouse explore the interesting and rich relationship between reparations and the tax law scholarship. Employing a rich dialogical style, the authors move fluidly between the theoretical and practical aspects of both reparations and tax law in a way that brings both areas of research together. Beyond the slavery reparations tax scams of the earlier part of the decade, the authors reveal an intriguing and important relationship between reparations and the United States tax code previously unexplored. The authors accomplish this in two distinct ways. They begin with an examination of reparations …

Rules And Tools Of Nonprofit Lobbying, Sharon Wilson

Sharon Wilson

Abstract: This article focuses primarily on the federal tax law restrictions on lobbying and political campaign activities of 501( c)(3) organizations. A brief history of the restrictions on lobbying is followed by an instructional guide for nonprofit organizations and attorneys seeking to advise nonprofits about permissible conduct in this arena. Opportunities for greater political involvement through use of sec 501(h), sec 501©(4) and other strategies that have been deemed permissible by the Internal Revenue Service are explored. An examination of the IRS’s questionable annual examination process for nonprofits is explored.

I Want A Refund: The Inadequate Opinion Of Northwest Energetic Services, Llc V. California Franchise Tax Board, Nathanael Cho

Nathanael Cho

The California Franchise Tax Board has received numerous claims for refunds from LLCs based on two cases that found a levy charged to LLCs registered in California unconstitutional because it was not fairly apportioned. The California Court of Appeal in Northwest Energetic Services, LLC v. California Franchise Tax Board held that the levy required by section 17942 of the California Revenue and Taxation Code violated the Commerce Clause and was therefore unconstitutional. In making its decision, the Appellate Court focused on the levy’s reference to “total income,” which the Appellate Court determined was income “wherever earned, and without apportionment according …

Recovery Of Interest On A Tax Underpayment Caused By A Tax Advisor's Negligence, Jacob L. Todres

Jacob L. Todres

OUTLINE/ABSTRACT

Page

Part I 2 INTRODUCTION

Part II 4 RECOVERABILITY OF INTEREST ON A TAX UNDERPAYMENT —THREE VIEWS

Presentation and explanation of the traditional, majority view, allowing the recovery of such interest; the minority view, prohibiting the recovery of such interest; and the modern, intermediate view, permitting the recovery of such interest only when the plaintiff paid more interest than the interest earned by the use of the tax underpayment.

Part III 20 THE DEVELOPMENT AND STATUS OF THE THREE VIEWS

History of the development of each of the views leading to a tally of the states currently following each …

What’S In A Name? The Role Of Danielson In The Taxation Of Credit Card Securitizations, Grace S. Lee

Grace S Lee

While the doctrine of substance over form has been a part of tax law for over seventy years, courts look disfavorably upon taxpayers who invoke the doctrine to argue against the forms of their own transactions under what is commonly referred to as the Danielson rule. Although the Danielson rule appears sound on its face, it holds less force when applied outside of its original context. In particular, the Danielson rule should not apply when the form given to a transaction is given for non-tax reasons, such as to achieve a particular accounting treatment. The taxation of credit card securitizations …

What’S In A Name? The Role Of Danielson In The Taxation Of Credit Card Securitizations, Grace S. Lee

Grace S Lee

While the doctrine of substance over form has been a part of tax law for over seventy years, courts look disfavorably upon taxpayers who invoke the doctrine to argue against the forms of their own transactions under what is commonly referred to as the Danielson rule. Although the Danielson rule appears sound on its face, it holds less force when applied outside of its original context. In particular, the Danielson rule should not apply when the form given to a transaction is given for non-tax reasons, such as to achieve a particular accounting treatment. The taxation of credit card securitizations …

Charity Law's Essentials, Dana Brakman Reiser

Dana Brakman Reiser

The boundary between charity and business has become a moving target. Social enterprises, philanthropy divisions of for-profit companies (most notably at Google), and legislation creating hybrid nonprofit/for-profit forms all use business models and practices to mold and pursue charitable objectives. This article asserts that charity law must be streamlined in order to respond to these and other dramatic charitable innovations. My new vision of charity law centers around two essential requirements. First, charity law must continue to demand that charities maintain an other-regarding orientation, pursuing benefits for someone other than their own leaders and managers. Second, existing charity law must …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

Qualified Intermediary Or Bust?, Susan C. Morse

Susan Cleary Morse

In reaction to news about wealthy U.S. individuals hiding assets in non-U.S. bank accounts, the Obama administration has proposed statutes that would make non-qualified intermediary (NQI) status more unattractive for non-U.S. banks. The proposals appear to push non-U.S. banks into qualified intermediary (QI) agreements with the IRS, and under accompanying proposals QIs would undertake expanded responsibilities to automatically provide information about U.S. clients to the IRS. But models other than the QI system could also serve the enforcement goal of international automatic information exchange. Fortunately, the proposals also would permit Treasury and the IRS to craft administrative exceptions to adverse …

Tax Justice And Same-Sex Domestic Partner Health Benefits: An Analysis Of The Tax Equity For Health Plan Beneficiaries Act, Michelle D. Layser

Michelle D Layser

This article analyzes the recently proposed Tax Equity for Health Plan Beneficiaries Act of 2009. Under current law the marriages and domestic partnerships of same-sex couples are not recognized for federal tax purposes under the Defense of Marriage Act. As a result, same-sex couples who receive employer-provided health benefits for their partners pay over $1,000 more in federal income tax than similarly situated opposite-sex couples. This unequal tax treatment also results in an additional burden of $57 million per year in extra payroll taxes for employers. The proposed Act would eliminate this discrimination.

To Work, Or Not To Work? The Immortal Tax Disincentives For Married Women, Margaret Ryznar

Margaret Ryznar

Among the most fundamental barriers to the aggressive participation of many married women in the work force are the disincentives for secondary income earners embedded in the federal tax code. Specifically, the current code contains a marriage penalty, which is aggravated by the progressive nature of taxation and any potential increases in income taxation. Meanwhile, child care expenses, a prerequisite for entry to the labor market, are treated inadequately. Although these immortal problems persist despite political pushes for relief, new attention to this topic is warranted given the Obama Administration’s pledge for tax law reform. If the principle to be …

Law And Choice Of Entity On The Social Enterprise Frontier, Thomas A. Kelley

Thomas A Kelley III

Social entrepreneurs are people who envision widespread, systematic social change and who attack society’s ills at the roots employing the spirit and the tools of entrepreneurship. They reject the traditional boundaries between the nonprofit and for-profit sectors and carry out their plans through so-called hybrid social enterprises, which combine the soul of nonprofit organizations with the discipline and business savvy of for-profits. Although social entrepreneurs generally are driven by a desire to do good, they view themselves as business people who are trying to achieve double bottom-line (financial and social) or triple bottom-line (financial, social and environmental) results.

Why should …

Effects Of Strategic Tax Behaviors On Corporate Governance, Nicola Sartori

Nicola Sartori

This paper addresses agency tensions and conflicts that may emerge between managers (agents) and shareholders (principals) as a result of aggressive tax planning strategies adopted by publicly held corporations. The interactions between corporate governance and taxation are bilateral and biunique: in fact, on one side, the manner in which corporate governance rules are structured affects the way a corporation fulfills its tax obligations; on the other side, the way tax designs (from the government perspective) and related tax strategies (from the corporation perspective) are planned influences corporate governance dynamics. This article investigates such bilateral relationship limiting the analysis to the …

Why Do Venture Capital Funds Burn Research And Development Deductions?”, Calvin H. Johnson

Calvin H. Johnson

Venture capital funds form a separate corporation for each venture they support. The separate incorporation destroys much of the value that the funds could achieve from deducting f research and development costs incurred by the ventures. The resulting taxes are draconian, sometimes confiscatory. The article looks carefully at the justifications offered for chosen structures in the literature and by interviews of experts in the field, and concludes that none of the justifications work. The willingness of sophisticated funds to burn their R&D deductions is a serious anomaly. The continuing puzzle as to why the deduction-destroying structure is used makes it …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Ilan Benshalom

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Ilan Benshalom

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Ilan Benshalom

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

"Taxnapping": How Murphy V. Irs Used Direct Taxation To Steal The Tax Reform Debate, Jason A. Derr

Jason A Derr

Suppose someone asks you, “You know, I’m fed up with the tax policy of United States, what can do I change it?” Although some may respond with ideas of protest, one of the most common responses will likely be, “Call your Congressperson.” However, after the D.C. Circuit’s decision in Murphy v. IRS, a new response is called for: “If you want to change tax policy, call the judge’s chambers.”

In Murphy v. IRS, the D.C. Circuit considered whether the taxation of emotional injury damages violated the “direct tax clauses” of the United States Constitution. The direct clauses are a mysterious …

Increasing Preparer Responsibility, Visibility And Competence, Leslie Book

Working Paper Series

The insights from the responsive regulation literature present an intriguing model for IRS interaction with preparers, and provide a theoretical context for a more nuanced approach that the IRS could adopt when considering its return preparer strategies. To some extent, the IRS’s current emphasis on preparer education, including the significant resources expended on tax forums and other general outreach programs, reflects IRS awareness that its interaction with preparers must take a varied approach. In this paper, I propose a more personal contact paradigm with preparers, with those contacts facilitated by heightened identification requirements and a more dedicated IRS effort to …