Law Commons^™

Virtual Intermediaries Ii - Canadian Solutions (Drop Shipments) Compared With Us, Japanese & Eu Approaches, Richard Thompson Ainsworth

Faculty Scholarship

Virtual travel agents are opportunistic internet-based travel agents. They are intermediary businesses that create mutually beneficial three-party transactions that secure accommodations for a traveler that: (a) meet the basic needs of the traveler (at a discount), (b) fills vacant room for accommodation retailers with guests that pay below market, but above standard costs, and (c) profit from the extra cash, the margin in the transaction.

The virtual intermediary’s eye is always on the discount and the cash flow. One of the things that catches their attention are the accommodation taxes which they collect from the traveler in advance and remit …

Living By The Initiative And Dying By The Initiative, Steve R. Johnson

Scholarly Publications

A significant fiscal development in recent decades in many states has been revision of tax laws and policy not by legislatures but by voters through the initiative process. Initiatives often have been used to restrain the growth of taxes and spending, and to that extent the owners of wealth, property, and income have benefitted from initiatives. Among the many examples of controversial and important state tax and spending initiatives, one may think of the Taxpayer Bill of Rights in Colorado, the supermajority requirement for tax increases in Nevada, and of course Proposition 13 in California.

However, that gate swings both …

Linton Family Llc And The Step Transaction Doctrine, Wendy G. Gerzog

All Faculty Scholarship

This article discusses Linton, a district court decision about a family limited liability company, indirect gifts, and the step transaction doctrine.

The Changing Landscape Of Tax Administration: Hot Topics Of Irs Audits Of Partnerships And S Corporations (Slides), Robert D. Schachat, Deborah M. Nolan

William & Mary Annual Tax Conference

No abstract provided.

Making Chicken Salad - Monetizing Tax Losses (Slides), Steven M. Friedman, Glenn M. Johnson

William & Mary Annual Tax Conference

No abstract provided.

Debt Workouts For Partnerships And S Corporations (Slides), Peter J. Genz

William & Mary Annual Tax Conference

No abstract provided.

Beyond First Blushes And Gut Reactions: Planning For The Coming Tax Increases (Slides), Mitchell A. Drossman

William & Mary Annual Tax Conference

No abstract provided.

The Office Of Professional Responsibility - Mission And Structure (Slides)

William & Mary Annual Tax Conference

No abstract provided.

Tax Issues In Real Estate Workouts, Peter J. Genz

William & Mary Annual Tax Conference

No abstract provided.

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven A. Dean

Faculty Scholarship

No abstract provided.

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven Dean

Faculty Scholarship

Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity--could provide a viable alternative. Achieving tax deharmonization potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.

The 'Absurd Results' Doctrine In State And Local Cases, Steve R. Johnson

Scholarly Publications

A statute will not be applied according to the literal meaning of its words if to do so would produce absurd results. Cases considering this principle have never been in short supply, but the rule has appeared in a striking number of cases in recent months. Accordingly, it is timely to explore this doctrine in this installment of Interpretation Matters.

The first part describes the doctrine generally. The second part identifies a critical question – and point of dispute – about the doctrine: What results can be considered to be absurd enough for the doctrine to apply? The third part …

State Finance In Times Of Crisis, Brian Galle, Jonathan Klick

All Faculty Scholarship

As recent events illustrate, state finances are pro-cyclical: during recessions, state revenues crash, worsening the effects of economic downturns. This problem is well-known, yet persistent. We argue here that, in light of predictable federalism and political economy dynamics, states will be unable to change this situation on their own. Additionally, we note that many possible federal remedies may result in worse problems, such as creating moral hazard that would induce states to take on excessively risky policy, both fiscal and otherwise. Thus, we argue that policy makers should consider so-called “automatic” stabilizers, such as are found in the federal tax …

The Sixth Amendment And Expert Witnesses In Criminal Tax Cases, Steve R. Johnson

Scholarly Publications

Recently, in the Baxter case, a federal district court vacated the sentence imposed as a result of a guilty plea in a criminal tax case. The court held that the failure of defense counsel to retain the services of an expert in tax crimes sentencing violated the defendant’s Sixth Amendment right to effective representation.

This installment of the Tax Crimes column explores Baxter. Part A briefly notes the civil and criminal tax contexts in which tax experts are used. Part B describes Baxter and its holding. Part C asks whether defense counsel in criminal tax cases should always retain a …

Easterday And The Erosion Of The Financial Inability Defense, Steve R. Johnson

Scholarly Publications

Several tax crimes in the code involve failure to pay known or assessed tax liabilities. For generations, there has been controversy over whether a taxpayer’s lack of funds from which to make payment should preclude conviction for those crimes. The potency of the financial inability defense1 has waned over the years. The recent decision of a divided Ninth Circuit panel in Easterday continues that trend, but the defense should still have life in some situations and some courts.

Part I of this report describes the tax crimes to which a financial inability defense may be relevant. Part II discusses Easterday. …

Misguided Relief: The Real Property Tax Addition To The Standard Deduction, Alan L. Feld

Faculty Scholarship

The push to use federal money for benevolent purposes occasionally produces more cost than benefit, particularly when the outlay comes in the form of taxes forgiven. The Housing Assistance Tax Act of 2008 added a supplement to the basic standard deduction. A nonitemizing taxpayer may claim a deduction for real property taxes paid, up to $500, $1,000 in the case of a joint return. Initially, the change applied only to 2008, but subsequent legislation extended its life through 2009, and pending legislation would make it a permanent part of the Code. Although well intentioned, the real property tax provision makes …

The Forgotten Entitlements: Reforming The Congressional Budget Process To Contain The Growth Of Tax Expenditures, Robert Lepore

Georgetown Law Fiscal Law and Policy Reform Briefing Papers

No abstract provided.

The Morphing Of Mtic Fraud: Vat Fraud Infects Tradable Co2 Permits, Richard Thompson Ainsworth

Faculty Scholarship

Missing trader intra-community (MTIC) fraud has been slowly morphing from cell phones and computer chips to other commodities. In the last few months however MTIC made a dramatic appearance in tradable CO2 permits. It closed exchanges and prompted France and the Netherlands to unilaterally change their tax treatment of CO2 trades. The UK has followed the French treatment in large measure. On Monday June 8, 2009 rumors of MTIC fraud in carbon emission permits closed the main European exchange for spot trading of European Union carbon emissions permits and Kyoto offsets. When BlueNext began trading permits again on Wednesday, June …

Legislative Rhetoric, Or How To Oppose Anything, Steve R. Johnson

Scholarly Publications

This installment of the column involves a change of focus. Instead of looking at the end of the legislative process – how courts interpret enacted statutes – this installment looks at the phase at which bills are enacted by or defeated in the legislature. However, the two phases have underlying similarities. As we will see, arguments used in legislative advocacy have counterparts in statutory interpretation advocacy. Our topic is particularly timely. Proposals to revise state and local tax statutes are always with us, of course, but recent budgetary stresses have increased both the number and significance of those proposals.

This …

Civil Partnership: Your Questions Answered - A Comprehensive Analysis Of The Civil Partnership Bill, Fergus Ryan

Reports

The Civil Partnership Bill 2009 arguably represents the most momentous change in Irish Family Law in a generation. The Bill proposes a substantial new legal status for registered same-sex partners, as well as important changes to the law as it relates to cohabitants. This report addresses the provisions of the Bill as initiated, analysing the potential impact of the Bill in clear and accessible language. The Report also highlights potential difficulties with the Bill, and suggests possible enhancements to the Bill as initiated.

Substantial Compliance, Steve R. Johnson

Scholarly Publications

There are many exceptions to the juvenile saw that “close counts only in horseshoes and hand grenades.” State and local tax practice may be among those exceptions – depending on possible application of the doctrine of substantial compliance. The tax law often makes the legal validity of one action contingent on a party having taken preliminary steps. Strict compliance – having to take those steps in precisely the right way at precisely the right time – is not always necessary. Courts sometimes hold that substantial compliance – “close enough” - suffices.

This installment of Interpretation Matters discusses the substantial compliance …

Corporate And International Tax Reform: Long-, Medium-, And Short Term Proposals, Reuven S. Avi-Yonah

Law & Economics Working Papers Archive: 2003-2009

The current controversy surrounding President Obama’s international tax proposals seems like an opportune moment to try to consider them in context. How do these proposals fit in with an agenda for US corporate and international tax reform?

Few observers doubt that such reforms are sorely needed, for several reasons. First, the long-term budgetary outlook is unsustainable. Second, the US corporate tax rate is among the highest in the OECD. Third, the current system raises relatively little revenue and large amounts of corporate income go untaxed. Finally, the system is horrendously convoluted and imposes high transaction costs.

This paper will attempt …

Clergy Tax Rules Extend Beyond Churches, Paul G. Schloemer

Business Administration Faculty Publications

• Whether an individual qualifies as a minister for tax purposes is determined based on who employs the individual and the duties the individual performs. An individual does not have to work for a church or denomination to be considered a minister but must perform the duties of a minister as specified in the regulations to be treated as a minister.
• Ministers are subject to special tax rules, including eligibility for a tax-free parsonage or housing allowance, being treated as self-employed for Social Security tax purposes, and being exempt from federal income tax withholding.
• If an employee provides the minister a …

Families For Tax Purposes: What About The Steps, Wendy G. Gerzog

All Faculty Scholarship

At least 4.4 million families in the U.S. are blended ones that include step-children and step-parents. For tax purposes, these steps receive preferential treatment for their status because they are on the one hand included as family members for many income tax benefit sections, but on the other hand excluded as family members for business entity attribution purposes and for gift and estate tax anti-abuse provisions. In the interests of fairness and uniformity, steps should be treated as family members for all tax purposes where steps have in fact voluntarily acted as their biological or adoptive counterparts, both when such …

Designing A Federal Vat: Summary And Recommendations, Reuven S. Avi-Yonah

Law & Economics Working Papers Archive: 2003-2009

For the past thirty-five years, the debate on fundamental tax reform in the United States has centered on whether some type of consumption tax would replace all or part of the federal income tax. In my opinion, this debate has now been decided. Given recent budgetary developments and the impending eligibility of the baby boom generation for Social Security and Medicare, we cannot dispense with the revenue from the corporate and individual income tax. Moreover, we will need huge amounts of additional revenue, and most informed observers believe that the only plausible source for such revenues is a federal Value …

Equitable Tolling In State And Local Tax Cases, Steve R. Johnson

Scholarly Publications

Tax statutes, like statutes of all kinds, frequently prescribe dates or times by which actions are to be taken. If the actor – either the taxpayer or the state or local revenue authority – fails to act by the specified date or time, the actor sometimes can be rescued by any of several legal and equitable mechanisms.

This installment of Interpretation Matters addresses one of those mechanisms: the doctrine of equitable tolling. Part I below describes the doctrine generally and gives examples of successful use of the doctrine by taxpayers and by revenue authorities. Part II identifies possible barriers to …

Responding To Sovereign Funds: Are We Looking In The Right Place?, Wei Cui

All Faculty Publications

At a superficial glance, Internal Revenue Code Section 892 appears to favor sovereign wealth funds (SWFs) over foreign private investors by exempting the former from tax on a significant range of US investments. This has recently led to calls for its abolition. Several authors, however, have challenged this view by pointing out that the impact of US tax on the relative competitiveness of SWFs and private investors should be analyzed in terms of the investors’ comparative, not absolute, advantage. And such analysis hinges on whether foreign private investors are taxed by their home countries on a worldwide basis, as well …

Xilinx And The Arm's-Length Standard, Reuven S. Avi-Yonah

Articles

On May 7 the Ninth Circuit decided Xilinx v. Commissioner. By a 2-1 majority, the panel reversed the Tax Court and held that costs of employee stock options must be included in the pool of costs subject to a tax-sharing agreement. The Xilinx decision is important for three reasons. First, cost sharing is probably the key element in current transfer pricing law because it is the principal way in which profits from intangibles get shifted from the United States to low-tax jurisdictions. Moreover, informed observers agree that the allocation of income from intangibles is the most important problem in transfer …

State Constitutional Limits On New Hampshire‘S Taxing Power: Historical Development And Modern State, Marcus Hurn

Law Faculty Scholarship

The New Hampshire Constitution is, in most of its fundamental parts, very old. It is long (nearly 200 articles) and wordy, even by the standards of the eighteenth century. It expresses essential principles in more than one place, in more than one way, and in language that to modem eyes is more suited to political philosophy than to positive law. Most of it was copied from the original Massachusetts Constitution, itself based on a draft by John Adams. However, there is no other state in the union with a structure of taxing powers and limits comparable to New Hampshire's.

Structuring A Us Federal Vat, Reuven S. Avi-Yonah

Law & Economics Working Papers Archive: 2003-2009

On 18 and 19 February 2009, the American Tax Policy Institute (ATPI) sponsored a conference in Washington, DC, on "Structuring a Federal VAT: Design and Coordination Issues." The conference was co-organized by Charles E. McLure, Jr. of Stanford University and the present writer, and featured many of the world's leading VAT experts from academia, government, and the private sector.

The purpose of the conference was to lay the ground for a potential future adoption of a federal VAT in the United States by discussing some of the technical issues related to two broad topics: Firstly, how should such a US …