Law Commons^™

When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle L. Drumbl

Michelle L. Drumbl

None available.

Tax Benefits Of Government-Owned Marijuana Stores, Benjamin Leff

Benjamin Leff

The "Estate Planning" Interviewer, Thomas L. Shaffer

Thomas L. Shaffer

Professor Shaffer's article The "Estate Planning" Interviewer is the Introduction: Part II, in J.K. Lasser's Estate Tax Techniques on pages INT-25 to INT-51

Citizens Abroad And Social Cohesion At Home: Refocusing A Cross-Border Tax Policy Debate, Michael S. Kirsch

Michael Kirsch

Over the past decade, a number of scholars have addressed the United States’ continuing use of citizenship as a jurisdictional basis upon which to tax the foreign-source income of individuals in the modern international setting. Some writers, including myself, have defended this citizenship-based taxation (“CBT”), while others have rejected it and proposed some form of residence-based taxation (“RBT”) for citizens.This Article considers the competing normative arguments raised in this context, and attempts to distill the strengths and weaknesses of each. In so doing, it attempts to highlight the most important factors upon which the debate hinges, and illustrates the importance …

"Trade Or Business": The Relevance Of A Deceptively Simple Income Tax Phrase To The Labor Code, Federal Statutes, And Private Equity Activity, Arthur Acevedo

Arthur Acevedo

Corporate law is premised upon two fundamental principles: the pooling of moneys for investment purposes and the privilege of limited liability. The pooling of money enables promoters and investors to efficiently amass and organize substantial sums for investment purposes. The privilege of limited liability assures investors that personal liability for the underlying invested activity is limited to the moneys invested. Limited liability is a sacrosanct principle and a quintessential investment assumption within the investment community. Private equity firms have successfully exploited these two policies. However, a decision by the First Circuit Court of Appeal casts a shadow of doubt on …

Regulating Charities In The Twenty-First Century: An Institutional Choice Analysis, Lloyd Hitoshi Mayer, Brendan M. Wilson

Lloyd Hitoshi Mayer

For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charity leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best …

The "Independent" Sector: Fee-For-Service Charity And The Limits Of Autonomy, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

Although numerous scholars have attempted to explain and justify the benefits provided to charities, none has been completely successful. Their theories share, however, two required characteristics for charities. First, charities must be distinct from other types of entities in society, including governmental bodies, businesses, other types of nonprofit organizations, and informal entities such as families. Second, charities must provide some form of public benefit. Given these defining characteristics, the principal role for the laws governing charities is to protect charities from influences that could potentially undermine these traits. This Article is the first to recognize fully the importance of this …

Grasping Smoke: Enforcing The Ban On Political Activity By Charities, Lloyd Histoshi Mayer

Lloyd Hitoshi Mayer

The rule that charities are not allowed to intervene in political campaigns has now been in place for over fifty years. Despite uncertainty about the exact reasons for Congress' enactment of it, skepticism by some about its validity for both constitutional and public policy reasons, and continued confusion about its exact parameters, this rule has survived virtually unchanged for all of those years. Yet while overall noncompliance with the income tax laws has drawn significant scholarly attention, few scholars have focused on violations of this prohibition and the IRS' attempts to enforce it. This Article focuses on the elusive issue …

Nfib V. Sebelius And The Transformation Of The Taxing Power, Barry Cushman

Barry Cushman

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five Justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other Justices had concluded that the provision was not a legitimate exercise of the commerce power, the Court held that it was a valid exercise of the taxing power. The origin of the distinction between taxes and penalties in taxing power jurisprudence is found in the 1922 …

Borenstein V. Commissioner (U.S. Tax Court Brief), T. Keith Fogg

W. Edward "Ted" Afield

No abstract provided.

Determining An Individual's Federal Income Tax Liability When The Tax Benefit Rule Applies: A Fifty-Year Checkup Brings A New Prescription For Calculating Gross, Adjusted Gross, And Taxable Incomes, Matthew J. Barrett

Matthew J. Barrett

The tax benefit rule should be described to indicate that it applies to credits and exclusions besides deductions, and deduction recoveries should be reported in the same location as was affected initially. The recovery should not affect gross income, for the purpose of tax equity. The recovery should rather affect either taxable income or adjusted gross income. The IRS and the courts should adopt this new description and principles.

The Psychological Autopsy In Judicial Opinions Under Section 2035, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Northwestern, O'Bannon And The Future: Cultivating A New Era For Taxing Qualified Scholarships, Kathryn Kisska-Schulze, Adam Epstein

Adam Epstein

'The Better Part Of Valour Is Discretion': Should The Irs Change Or Surrender Its Oversight Of Tax-Exempt Organizations?, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

Recent events have highlighted the difficulties the Internal Revenue Service faces when attempting to ensure that purportedly tax-exempt organizations in fact qualify for that status. The problems in this area go much deeper than a group of IRS employees subjecting certain organizations to greater scrutiny based on their political leanings, however. For decades members of the public, the media, the academy, and Congress have criticized the limited ability of the IRS to ensure that organizations claiming exemption from federal income tax in fact deserve that categorization. Yet examples of IRS failings in this area continue to arise with depressing frequency. …

Registered Savings Plans And The Making Of Middle Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps

Lisa Philipps

Politicians across Canada’s political spectrum strive to position themselves as defenders of the middle class, and tax policy is a prime vehicle for making this pitch. Any tax reform proposal can be examined critically to evaluate its likely distributional impacts and how well these map onto specific definitions of the middle class. This article attempts, however, a different project. Drawing on the ideas of Judith Butler, it analyzes instead how tax policy produces middle-class identity through the very process of claiming to advance middle-class interests. The case study for this purpose is the rise of tax incentives for saving as …

The Administration Of Canada’S Transfer Pricing Rules: Issues And Recommendations, Jinyan Li, Pierre Barsalou, John Oatway, François Vincent

Jinyan Li

No abstract provided.

Comparison And Assessment Of The Tax Treatment Of Foreign Source Income In Canada, Australia, France, Germany And The United States, Jinyan Li, Brian Arnold, Nolan Sharkey

Jinyan Li

No abstract provided.

Taxation Of Foreign Business And Investment In The People's Republic Of China, Alex Easson, Li Jinyan

Jinyan Li

Up until the last six or seven years, very little attention has been paid in the West to the tax system of the People's Republic of China ("PRC" or "China"). This is understandable since, in the immediate post-liberation years, many countries in the Western Hemisphere tried hard to pretend that the PRC did not exist at all. Following its break with the Soviet Union in 1960, China adhered firmly to a policy of self-reliance. China's opening to the West, in economic terms, did not really begin until approximately 1978. Given the type of economic system which had evolved in China …

International Mobility Of Highly Skilled Workers In The Canadian Context: Tax Barriers And Reform Options, Jinyan Li

Jinyan Li

No abstract provided.

Give Taxpayers A Break: Putting The Reliance Element Back Into The Reasonable Reliance And Good Faith Defense, Ronald Z. Domsky

Ronald Z. Domsky

No abstract provided.

Quoted In Daily Tax Report On Dow's Tax Penalty Loss, Robert D. Probasco

Robert Probasco

No abstract provided.

Through The Doughnut Hole: Reimagining The Social Security Contribution And Benefit Base Limit, Patricia E. Dilley

Patricia E Dilley

The Obama campaign proposal to address Social Security's future financing shortfalls by increasing the Social Security tax base limit only for those making more than $250,000 per year raises the broader question of the function of the base limit from a Social Security program perspective. The public supports increasing the wage base above all other possible avenues for solving long term financing issues, but the problems with the Obama "doughnut hole" proposal are substantial from several perspectives. In this article, the author suggests that the function of the base limit be reconsidered, and the benefit accrual function of the earnings …

Passthrough Entities: The Missing Element In Business Tax Reform, Karen C. Burke

Karen Burke

Reform of the U.S. corporate tax system is again on the agenda. Despite important differences, many current proposals share two common goals: (1) reducing the statutory corporate tax rate to improve U.S. “international competitiveness” and (2) broadening the corporate tax base by reducing or eliminating business expenditures to offset revenue losses. Given the significance of the passthrough sector and the relationship between individual and corporate taxes, however, such reforms need to be considered within a broader context. Part I of this article discusses the growing significance of the passthrough sector, which now accounts for roughly half of net business income. …

Codifying Castle Harbour, Karen C. Burke, Grayson M.P. Mccouch

Karen Burke

In this article, Burke and McCouch discuss the 2015 statutory amendment, enacted as part of the last-minute budget deal, that revised and renumbered the family partnership provision of section 704(e)(1). They question whether the change will accomplish its stated purposes of clarifying existing law and raising $1.9 billion in revenue, and they conclude that the 2014 proposals by former House Ways and Means Committee Chair Dave Camp offer a politically expedient source of selective pay-fors for future government spending without actually raising taxes.

A Good Old Habit, Or Just An Old One? Preferential Tax Treatment For Reorganizations, Yariv Brauner

Yariv Brauner

This article proposes to repeal the preferential tax treatment of certain merger and acquisition transactions known as "reorganizations," and tax them like all other sales or exchanges. In the last 80 years this preference has been a cornerstone of our tax system. It is also one of the most stable rules in the tax code. Nevertheless, its normative justification is weak, and has never been rigorously debated in the legal literature. This article rejects the stated rationale for this rules - that such transactions trigger insufficient realization and therefore it is both unfair and impractical to currently tax them. It …

Of More Than Usual Interest: The Taxing Problem Of Debt Principal, Charlene Luke

Charlene Luke

Leverage is an essential but often troubling component of the U.S. market. The financial crisis highlighted the risks and complexity of a leverage web that includes flesh-and-blood people from all walks of life and paper people from all corners of the business and investment world. In the tax area, the potentially problematic incentive effects of interest deductibility have long engaged a wide array of tax commentators and policymakers. While interest deductibility rightly receives widespread scrutiny, a more comprehensive approach to leverage is needed. This Article focuses on the surprisingly complicated tax treatment of cash (and cash equivalent) borrowings. This Article …

Embracing The Queen Of Hearts: Deference To Retroactive Tax Rules, James M. Puckett

James Puckett

The Supreme Court’s decision in Mayo Foundation for Medical Education and Research v. United States underscored the importance of a uniform approach to judicial review of administrative action; accordingly, the Court clarified that tax administration is generally subject to the same review as other kinds of administrative action by other federal agencies. Tax guidance from the IRS and Treasury Department serves an important role in clarifying the tax law so that taxpayers may report their tax liability accurately and plan their affairs. Meanwhile, aggressive attempts by a relatively small number of taxpayers to avoid tax liability by exploiting arguable ambiguities …

Structural Tax Exceptionalism, James M. Puckett

James Puckett

This Article argues that it is misleading to declare the death of tax exceptionalism and that structural tax exceptionalism may have important benefits. Part II provides a brief historical overview of the rise of federal agency administration of statutes and especially tax laws. The history trends to detract from anti-tax and anti-agency rhetoric that counsel disempowering the Treasury Department and other administrative agencies from comprehensively enforcing laws and making policy in their relevant domains. Part III analyzes how the Code's structure for tax administration differs from the APA template for administrative agencies. Part IV deconstructs these differences, drawing from general …

When Does A Settlement Become Binding On A Party In The Tax Court, T. Keith Fogg

T. Keith Fogg

The 21st Century Fight Over Who Sets The Terms Of The Charity Property Tax Exemption, Evelyn Brody

Evelyn Brody