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The Tiley Trilogy And U.S. Anti-Avoidance Law, Erik M. Jensen Jan 2014

The Tiley Trilogy And U.S. Anti-Avoidance Law, Erik M. Jensen

Faculty Publications

This article examines an influential set of articles, written by Professor John Tiley in the late 1980s, about anti-avoidance doctrines developed by US courts. The trilogy of articles was written for a British audience, as part of Tiley’s efforts to resist importation of US doctrines (“bleeding chunks of alien doctrine,” as he put it) into the UK, but his ideas remain relevant to tax theorists in all countries, including the US. The article also examines the work of the Aaronson Committee, of which Tiley was a member, which successfully recommended in 2011 that the UK adopt a general anti-avoidance ...


Taxation And Doing Business In Indian Country, Erik M. Jensen Jan 2008

Taxation And Doing Business In Indian Country, Erik M. Jensen

Faculty Publications

Furthering investment in Indian country (a term that includes, but is not limited to, reservations) is an important goal, but potential investors are hesitant - and with reason. One disincentive to invest is uncertainty about tax liability. Understanding taxation in Indian country requires knowledge not only of traditional tax law, but also of American Indian law principles dating from the early nineteenth century, and not many practitioners are up to that task. This article tries to make sense, as much as is possible, of the doctrines that have developed over the centuries.

The article first discusses some basics: the concept of ...


Introduction: Capitalizing On The Success Of Entrepreneurship: Ipos, Private Sales, Tax Aspects, Residual Interest Of Entrepreneurs After Sales Of Ipos, Richard K. Gordon Jan 2007

Introduction: Capitalizing On The Success Of Entrepreneurship: Ipos, Private Sales, Tax Aspects, Residual Interest Of Entrepreneurs After Sales Of Ipos, Richard K. Gordon

Faculty Publications

Panel discussion on "Capitalizing on the Success of Entrepreneurship: IPOS, Private Sales, Tax Aspects, Residual Interest of Entrepreneurs after Sales of IPOS" from the "The Canada-United States Law Institute Conference on Comparative Legal Aspects of Entrepreneurship in Canada and the United States" - Cleveland, Ohio April 13-14, 2007.


Wheir’S The Beef?: Buffalo Law And Taxation, Erik M. Jensen Feb 2006

Wheir’S The Beef?: Buffalo Law And Taxation, Erik M. Jensen

Faculty Publications

The intersection of buffalo law and taxation hasn't been a busy one, but accidents still happen: not everyone understands that buffalo have the right of way. This article critically analyzes the recent Tax Court summary opinion in Wheir v. Commissioner, which involved a bodybuilder who sought to deduct the cost of an incredible amount of buffalo meat. Along the way, the article brings buffalo law learning up-to-date; revisits some classic, nineteenth-century buffalo law cases; and, most important, considers whether there are important differences between the American bison and American beef cattle - differences that might have relevance to American tax ...


Taxation Of Beards, Erik M. Jensen Feb 2006

Taxation Of Beards, Erik M. Jensen

Faculty Publications

This article makes a compelling case that the United States could learn from the imaginative tax policy-maker Peter the Great and institute a tax on beards. Such a tax could raise a little revenue, decrease scruffiness, and provide a new subject for cutting-edge law review notes.

Note: This a description of the paper and not the actual abstract.


Chickasaw Nation: Interpreting A Broken Statute, Erik M. Jensen Feb 2006

Chickasaw Nation: Interpreting A Broken Statute, Erik M. Jensen

Faculty Publications

This report discusses the Supreme Court's 2001 decision in Chickasaw Nation v. United States, in which the Supreme Court interpreted a provision of the Indian Gaming Regulatory Act that contained contradictory phrases - one suggesting that Indian tribes were exempt from some occupational and excise taxes and one suggesting the contrary. The statute on its face made no sense, and the legislative history was of little help in resolving the ambiguity. Although the statute was clearly broken, the Court concluded that no ambiguity existed and that Congress did not intend to exempt tribes from those various wagering taxes. The author ...


The Taxing Power, The Sixteenth Amendment, And The Meaning Of ‘Incomes,’, Erik M. Jensen Feb 2006

The Taxing Power, The Sixteenth Amendment, And The Meaning Of ‘Incomes,’, Erik M. Jensen

Faculty Publications

This article examines the debates leading to the enactment of the 1894 income tax, which the Supreme Court struck down in 1895, and the Sixteenth Amendment, ratified in 1913, and concludes that an income tax and a tax on consumption were understood to be fundamentally different types of taxes. The author argues that the term “taxes on incomes” in the Sixteenth Amendment should be interpreted with that distinction in mind. The Amendment was intended to make a “tax on incomes,” and only a tax on incomes, possible without the apportionment that would otherwise be required for a direct tax. For ...


Unapportioned Direct-Consumption Taxes And The Sixteenth Amendment, Erik M. Jensen Feb 2006

Unapportioned Direct-Consumption Taxes And The Sixteenth Amendment, Erik M. Jensen

Faculty Publications

The point of this essay is simple: a direct-consumption tax like the Forbes-Armey-Hall-Rabushka flat tax or the Nunn-Domenici USA tax is not a "tax on incomes" within the meaning of the Sixteenth Amendment. As a result, such a tax would be constitutional only if it were apportioned among the states on the basis of population. And since these taxes would not be apportioned-how could they be and work as they are intended to work?-they would be unconstitutional.


Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen Jan 2006

Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen

Faculty Publications

This essay responds to Professor Bruce Ackerman, who had challenged the author's understanding of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment to that Constitution.


The Control Of Avoidance: The United States Alternative, John Tiley, Erik M. Jensen Jan 2006

The Control Of Avoidance: The United States Alternative, John Tiley, Erik M. Jensen

Faculty Publications

This article, jointly written by a British and an American academic, describes the American experience in identifying and attacking tax avoidance. The article was part of a symposium issue of the British Tax Review, published by Sweet and Maxwell, devoted to tax avoidance issues around the globe.


Critical Theory And The Loneliness Of The Tax Prof, Erik M. Jensen Jan 2006

Critical Theory And The Loneliness Of The Tax Prof, Erik M. Jensen

Faculty Publications

This essay, prepared for a symposium on critical theory and tax law, has two goals: to suggest why feminist theory and critical race theory are spreading in taxation and to discuss some dangers of that criticism. The author evaluates three examples of the new criticism: an article on critical race theory by Professors Moran and Whitford; an article on feminist statutory interpretation by Professor Handelman; and a book, Taxing Women, by Professor McCaffery.


The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen Jan 2006

The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen

Faculty Publications

In debates about reorienting the American revenue system, nearly everyone assumes the Constitution is irrelevant. With few exceptions, the tax provisions in the original Constitution - particularly the direct-tax apportionment rule and the uniformity rule - have been interpreted to be paper tigers. And in only one major case has the Sixteenth Amendment, which excepts "taxes on incomes" from apportionment, been held to limit congressional power.

S Rejecting conventional wisdom, this Article argues that some consumption taxes would violate constitutional norms. The Article focuses on the requirement that “direct taxes” be apportioned among the states on the basis of population. From a ...


Commentary: Food For Thought And Thoughts About Food: Can Meals And Lodging Provided To Domestic Servants Be For The Convenience Of The Employer?, Erik M. Jensen Jan 2006

Commentary: Food For Thought And Thoughts About Food: Can Meals And Lodging Provided To Domestic Servants Be For The Convenience Of The Employer?, Erik M. Jensen

Faculty Publications

This commentary considers one of the least important issues in tax law: whether the value of meals and lodging provided to domestic servants is excludable from the servants' gross income under section 119 of the Internal Revenue Code. Trivial though the issue is, the author goes on and on-and on, arguing that an example in the regulations under section 119, which concludes that the "business premises of the employer" requirement would be satisfied in such a situation, is misleading in its implications. It's not enough that the meals and lodging be provided on the business premises of the employer ...


The Supreme Court And The Timing Of Deductions For Accrual-Basis Taxpayers, Erik M. Jensen Jan 2006

The Supreme Court And The Timing Of Deductions For Accrual-Basis Taxpayers, Erik M. Jensen

Faculty Publications

This article examines the Supreme Court's two decisions in the late 1980s dealing with the timing of deductions, United States v. Hughes Properties (1986) and United States v. General Dynamics Corp. (1987), and finds those decisions wanting. Indeed, it is hard to understand why the Court exercised its discretionary jurisdiction twice in such a short period when the cases involved technicalities that seemed to overwhelm the generalist justices and when subsequent disputes with similar factual situations would be affected by statutory changes.


Taxation, The Student Athlete, And The Professionalization Of College Athletics, Erik M. Jensen Jan 2006

Taxation, The Student Athlete, And The Professionalization Of College Athletics, Erik M. Jensen

Faculty Publications

It has become common to hear critics argue that big-time college athletes are being exploited by their institutions and that they should be paid fair market value for their services. This article argues that such a policy, if adopted, could have some unexpected consequences for the colleges. The traditional justification for not taxing athletic income (basically meaning, for most big-time schools, that from football and basketball) is that the participants are student athletes, that the activities are related to the colleges’ overall educational purposes, and that the athletic revenue is therefore not subject to the tax on unrelated business income ...


The Uneasy Justification For Special Treatment Of Like-Kind Exchanges, Erik M. Jensen Jan 2006

The Uneasy Justification For Special Treatment Of Like-Kind Exchanges, Erik M. Jensen

Faculty Publications

This article considered the traditional justifications for nonrecognition treatment for like-kind exchanges, as provided in section 1031 of the Internal Revenue Code, and found them wanting. The article nevertheless concluded that, even though the justifications are imperfect, section 1031 has some plausibility to it, at least as applied to traditional, simultaneous exchanges.


The Heroic Nature Of Tax Lawyers, Erik M. Jensen Jan 2006

The Heroic Nature Of Tax Lawyers, Erik M. Jensen

Faculty Publications

This essay uses John Grisham’s monumental work, 'The Firm,' to refute the notion that tax lawyers are nerds. A tax lawyer himself, the author challenges anyone who disagrees with him to a duel with broadswords.


Doing Business In Indian Country: Introduction To American Indian Law Concepts Affecting Taxation, Erik M. Jensen Jan 2003

Doing Business In Indian Country: Introduction To American Indian Law Concepts Affecting Taxation, Erik M. Jensen

Faculty Publications

This article describes some of the issues that will affect whether national, state, and tribal governments can tax investors who do business, or who invest in doing business, within Indian country (a term generally meaning American Indian reservations, although it can be broader than that).

Absent treaty language or express statutory language to the contrary, tribal members are subject to federal taxes of general application, such as the income tax. The Internal Revenue Code does contain some specific provisions exempting certain sorts of income, such as that from fishing-rights related activities, from taxation. In general, nonmembers of a tribe who ...


American Indian Law Meets The Internal Revenue Code: Warbus V. Commissioner, Erik M. Jensen Jan 1998

American Indian Law Meets The Internal Revenue Code: Warbus V. Commissioner, Erik M. Jensen

Faculty Publications

This article examines a 1998 Tax Court decision, Warbus v. Commissioner, that has implications for both American Indian law and federal tax law. Section 7873 of the Internal Revenue Code exempts from taxation amounts derived by American Indian tribal members from fishing-rights related activit[ies] of their tribes. Taxpayer Warbus claimed that discharge of indebtedness income from the foreclosure of his fishing boat qualified for the exclusion; the Tax Court said no. The author argues that Warbus was wrongly decided for two reasons: the court failed to take account of basic principles of American Indian law, and the court misapplied ...


The Supreme Court’S Misleading Footnote In General Dynamics, Erik M. Jensen Jan 1997

The Supreme Court’S Misleading Footnote In General Dynamics, Erik M. Jensen

Faculty Publications

This article examines footnote 3 in the Supreme Court's 1987 opinion in United States v. General Dynamics. In that case, governed by the law in place before the Tax Reform Act of 1984, the Court held that General Dynamics had to defer deductions attributable to claims for employee medical expenses until the claims were approved. In the footnote, the Court suggested that the 1984 amendment to section 461(h) of the Internal Revenue Code postponing the time for deducting accrued expenses until economic performance would, in a similar case governed by the statutory change, have further deferred General Dynamics ...