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2017

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Full-Text Articles in Law

Protective Claims For Refund: Protecting The Interests Of Taxpayers And The Irs, Kristy M. Bowden Dec 2017

Protective Claims For Refund: Protecting The Interests Of Taxpayers And The Irs, Kristy M. Bowden

Maine Law Review

The Internal Revenue Code provides taxpayers wishing to claim a refund of an overpayment of taxes with a simple, straightforward provision setting forth a taxpayer's right to make such a claim. Additionally, regulations exist that provide for the procedure to be followed in order to claim a refund, further clarifying what is expected of the taxpayer. Unfortunately, not all situations that give rise to the right to claim a refund are so straightforward and simple. Taxpayers may find themselves in a situation that seems to have very little direct connection with tax, but may nonetheless result in significant tax consequences. …


26 Usc Section 280e: Will The Dragon Now Be Slayed?, Bill Greenberg, Rebecca Greenberg Dec 2017

26 Usc Section 280e: Will The Dragon Now Be Slayed?, Bill Greenberg, Rebecca Greenberg

Journal of Law and Policy

26 USC § 280E of the Internal Revenue Code (“§ 280E”) prohibits the deduction of ordinary business expenses for businesses deemed by the federal government to be drug traffickers as defined by the Controlled Substances Act (“CSA”). The tax enactment is specifically designed to serve as a disincentive to socalled drug traffickers who might otherwise deduct “ordinary and necessary business expenses” from their taxes. However, this harms legitimate cannabis businesses by promoting unintended consequences, such as under-reported income. For three decades, there has been a patent incongruity between § 280E’s congressional purpose and the expansion of state-legalized cannabis businesses in …


The Unreasonable Case For A Reasonable Compensation Standard In The Public Company Context: Why It Is Unreasonable To Insist On Reasonableness, Stuart G. Lazar Nov 2017

The Unreasonable Case For A Reasonable Compensation Standard In The Public Company Context: Why It Is Unreasonable To Insist On Reasonableness, Stuart G. Lazar

Stuart Lazar

There is no question that corporate executives are well paid. But does high executive compensation mean excessive or unreasonable compensation? And if so, what is the solution to curbing the problem of excessive executive pay? More specifically, should the Internal Revenue Code be used as a means for regulating the actions of public companies?

This Article briefly explores these issues. In Part I, this Article provides a narrative of the excessive compensation debate. Without drawing a conclusion as to whether executive compensation is reasonably set or excessive in nature, Part I summarizes the history of public outrage surrounding executive pay. …


Irs Overhauls Spin-Off Ruling Guidelines, Stuart M. Finkelstein, Stuart G. Lazar Nov 2017

Irs Overhauls Spin-Off Ruling Guidelines, Stuart M. Finkelstein, Stuart G. Lazar

Stuart Lazar

No abstract provided.


Schooling Congress: The Current Landscape Of The Tax Treatment Of Higher Education Expenses And A Framework For Reform, Stuart G. Lazar Nov 2017

Schooling Congress: The Current Landscape Of The Tax Treatment Of Higher Education Expenses And A Framework For Reform, Stuart G. Lazar

Stuart Lazar

Education may be a cornerstone of our society, but the tax treatment of higher education expenses does not appear to have resulted from an intellectual exercise that would make our nation’s educators’ proud. The Internal Revenue Code provides two separate, but equally unsatisfying, routes that allow taxpayers to offset their income with the costs of higher education. Where an individual can reduce her tax liability while receiving an education, the effect is to reduce significantly the cost of that education. First, where amounts spent on education qualify as an “ordinary and necessary business expense,” a taxpayer will be entitled to …


Business Lobbying As An Informational Public Good: Can Tax Deductions For Lobbying Expenses Promote Transparency?, Michael Halberstam, Stuart G. Lazar Nov 2017

Business Lobbying As An Informational Public Good: Can Tax Deductions For Lobbying Expenses Promote Transparency?, Michael Halberstam, Stuart G. Lazar

Stuart Lazar

The view that “lobbying is essentially an informational activity” has persistently served the suggestion that lobbying provides a public good by educating legislators about policy and the consequences of legislation. In this article, we link a proposed tax reform with a substantive disclosure requirement to promote the kind of “information subsidy” that serves the public interest, while mitigating – at least to some extent – the distortion that may result from the imbalance of financial resources on the business side and other institutional contraints identified in the literature. We argue that corporate lobbying should be encouraged – by allowing business …


A Progressive Case For A Universal Transaction Tax, Gary Chartier Nov 2017

A Progressive Case For A Universal Transaction Tax, Gary Chartier

Maine Law Review

Federal Reserve Board chair Alan Greenspan’s recent call for tax simplification and his acknowledgement of arguments for a consumption tax may help to place the question of such taxes, including a value-added tax (VAT), on the national political agenda. If the possibility of imposing a VAT does receive significant national attention, the debate it occasions will obviously, and appropriately, focus in part on a variety of technical questions. But normative questions will likely be at issue as well. A VAT is like a sales tax, but is applied at each stage in a product’s development and not merely when it …


The Inappropriateness Of The Bad Checks Penalty, Jeffrey H. Kahn, Douglas A. Kahn Nov 2017

The Inappropriateness Of The Bad Checks Penalty, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

In this article, the authors argue that the penalty for sending a bad check to the IRS is excessive and that the reasonable cause exception should apply to any honest factual error.


Basr Partnership V. United States (Federal Circuit Amicus Brief), T. Keith Fogg Nov 2017

Basr Partnership V. United States (Federal Circuit Amicus Brief), T. Keith Fogg

W. Edward "Ted" Afield

No abstract provided.


Trump's "Big-League" Tax Reform: Assessing The Impact Of Corporate Tax Changes, Ryan J. Clements Nov 2017

Trump's "Big-League" Tax Reform: Assessing The Impact Of Corporate Tax Changes, Ryan J. Clements

Michigan Business & Entrepreneurial Law Review

This Article reviews and assesses corporate tax reforms advocated by President Donald Trump during his presidential campaign and signed into law since taking office (the Tax Cuts and Jobs Act of 2017), in light of economic theory and the Modigliani-Miller Irrelevance Theorem. The Ar-ticle argues that companies will adapt polcies in light of new taxation mea-sures, thereby impacting the effectiveness of reform. In support of this conclusion, the Article surveys two empirical studies—one in relation to the repatriation efforts of President Bush’s Homeland Investment Act and an-other in relation to unexpected changes to the taxation of Canadian income trusts—to highlight …


Federal Tax Code Restrictions On Church Political Activity, Deirdre Dessingue Halloran, Kevin M. Kearney Oct 2017

Federal Tax Code Restrictions On Church Political Activity, Deirdre Dessingue Halloran, Kevin M. Kearney

The Catholic Lawyer

No abstract provided.


Taxation And Doing Business In Indian Country, Erik M. Jensen Oct 2017

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

Maine Law Review

Economic development on the lands of the American Indian nations has been spotty at best. Almost everyone knows the great success stories with Indian gaming, which has been furthered by federal legislation, but those economic benefits have not been felt uniformly. Some tribes have prospered because of this peculiarly favored form of enterprise; others have not and, in many cases, probably cannot. Substantial economic development in Indian country will not occur without significant infusions of outside capital, but investment by non-Indian and nongovernmental sources is risky, or is perceived to be so, which leads to the same practical result. This …


Is Anybody Home? The Relaxation Of The Residency Requirement For Claiming A Qualifying Child Under The Earned Income Tax Credit After Rowe V. Commissioner, Jennifer S. Hamel Oct 2017

Is Anybody Home? The Relaxation Of The Residency Requirement For Claiming A Qualifying Child Under The Earned Income Tax Credit After Rowe V. Commissioner, Jennifer S. Hamel

Maine Law Review

Cynthia Rowe is currently serving a life sentence in prison for the shooting death of her brother-in-law. While she may have lost her criminal case, at least Rowe came away victorious in the recent Tax Court decision, Rowe v. Commissioner, in which she was awarded the earned income tax credit (EITC) over the objection of the Internal Revenue Service (Service or IRS). Unfortunately, her victory comes at the expense of sound legal analysis and public policy. Despite the efforts of Congress to ensure that the benefit of the EITC is given only to those who need it most by imposing …


Fdic/Cash Management, David F. Menz, Joseph E. Kane, Thomas Drought Oct 2017

Fdic/Cash Management, David F. Menz, Joseph E. Kane, Thomas Drought

The Catholic Lawyer

No abstract provided.


Creating Access To Tax Benefits: How Pro Bono Tax Professionals Can Help Low-Income Taxpayers Claim The Earned Income Tax Credit, Kate Leifeld Oct 2017

Creating Access To Tax Benefits: How Pro Bono Tax Professionals Can Help Low-Income Taxpayers Claim The Earned Income Tax Credit, Kate Leifeld

Maine Law Review

The Earned Income Tax Credit (EITC) is meant to help low-income, working taxpayers and their families by providing a refundable tax credit. In healthy economic times, the EITC is relied upon to pull low-income taxpayers and their children out of poverty. However, we are facing the toughest economic climate in decades. In September 2009, unemployment was reported to be at 9.7 percent. While the economic outlook has begun to show signs of improvement, the unemployment rate for February 2010 remained at 9.7 percent. Even when improvement starts, the turnaround will not be overnight. In this economic climate, the EITC becomes …


Designing A Legal Regime To Capture Capital Gains Tax On Indirect Transfers Of Mineral And Petroleum Rights: A Practical Guide, Perrine Toledano, John Bush, Jacky Mandelbaum Oct 2017

Designing A Legal Regime To Capture Capital Gains Tax On Indirect Transfers Of Mineral And Petroleum Rights: A Practical Guide, Perrine Toledano, John Bush, Jacky Mandelbaum

Columbia Center on Sustainable Investment Staff Publications

When a local asset (or a right relating to such asset) is sold, a country will generally have jurisdiction to levy a capital gains tax on the sale, both under domestic law and international treaty. This is called taxation of a “direct” transfer of a local asset. However, taxation becomes increasingly complicated when a company located offshore owns the local asset. Further difficulties arise when the local asset is held by a chain of corporations located in tax havens. An “indirect” transfer occurs when the shares of the domestic subsidiary, the shares of the foreign company with a branch in …


Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Hunter Mcmahon Oct 2017

Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Hunter Mcmahon

Washington Law Review

Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance’s procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an …


Open Source: The Enewsletter Of Rwu Law 09-22-2017, Roger Williams University School Of Law Sep 2017

Open Source: The Enewsletter Of Rwu Law 09-22-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Federal Tuition Tax Credits And The Establishment Clause: A Constitutional Analysis, David J. Young, Steven W. Tigges Sep 2017

Federal Tuition Tax Credits And The Establishment Clause: A Constitutional Analysis, David J. Young, Steven W. Tigges

The Catholic Lawyer

No abstract provided.


Tax Exemptions Of Private Schools - The Impact Of Internal Revenue Service Proposals On The Catholic School System, John S. Nolan, Miller And Chevalier, Washington, D.C. Sep 2017

Tax Exemptions Of Private Schools - The Impact Of Internal Revenue Service Proposals On The Catholic School System, John S. Nolan, Miller And Chevalier, Washington, D.C.

The Catholic Lawyer

No abstract provided.


Update On Unemployment Compensation, Thomas A. Rayer, Denechaud & Denechaud, New Orleans, Louisiana Sep 2017

Update On Unemployment Compensation, Thomas A. Rayer, Denechaud & Denechaud, New Orleans, Louisiana

The Catholic Lawyer

No abstract provided.


Elaine Gagliardi On Uncertain Times: Anticipating Change And Reacting To Recent Wealth Transfer Tax Developments, Elaine H. Gagliardi Sep 2017

Elaine Gagliardi On Uncertain Times: Anticipating Change And Reacting To Recent Wealth Transfer Tax Developments, Elaine H. Gagliardi

Faculty Journal Articles & Other Writings

Looming on the horizon is the very real possibility of estate tax repeal. In the interim for those clients needing to immediately make estate planning decisions, the question becomes what planning strategies best meet client needs in the face of an uncertain estate tax. Acknowledging that the ultimate answer depends on individual circumstances and goals, some common planning strategies nevertheless emerge as better options than others to address particular client goals, especially those of married couples. These planning strategies work well now and can be adapted to work well under the most likely Congressional response to repeal. Republicans have alluded …


The Negative Capital Account Maze, Walter D. Schwidetzky Aug 2017

The Negative Capital Account Maze, Walter D. Schwidetzky

All Faculty Scholarship

Outside Hubert I and Hubert II, there has been little discussion of negative capital accounts in the tax context and almost no discussion in the nontax context. Nontax law, however, is critically important. This report provides an integrated discussion of the application of tax and nontax law to negative capital accounts.

One of the challenges in writing this report is that it requires a discussion of both the at-risk rules of section 465 and the debt allocation rules of section 752. Complex issues involving sections 465 and 752 and their interaction are worthy of their own articles. Indeed, others have …


The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow Aug 2017

The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow

All Faculty Scholarship

Digital tokens have been used to raise substantial amounts of money. But little attention has been paid to the tax consequences surrounding their issuance and sale. There are significant potential tax liabilities lurking in the use of digital tokens. But, because of the anonymity inherent in the blockchain structures used for the issuance of tokens and payments for them, there is a significant question as to whether those tax liabilities will ever be collected.


A Practical Solution To The Marriage Penalty, Margaret Ryznar Jul 2017

A Practical Solution To The Marriage Penalty, Margaret Ryznar

Pepperdine Law Review

In the federal income tax code, there is a marriage penalty resulting from tax brackets that do not double upon marriage. This marriage penalty persists despite universal condemnation of it, penalizing a significant portion of married women who work and many same-sex couples. This Article proposes a novel way to deal with this marriage penalty by creating a filing status for dual income couples that earn an amount within a particular percentage of each other. This filing status would be the same as the current married filing status, except it would double the rates of single filers by accommodating two …


A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David J. Herzig Jul 2017

A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David J. Herzig

Indiana Law Journal

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex in-dividuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the re-cent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of …


Federal Income Taxation, Robert Beard, Gregory S. Lucas Jul 2017

Federal Income Taxation, Robert Beard, Gregory S. Lucas

Mercer Law Review

In 2016, federal courts in the United States Court of Appeals for the Eleventh Circuit handed down several notable opinions on federal tax issues. This Article surveys four of those opinions involving the collection of foreign taxes pursuant to a tax treaty, the characterization of income from the sale of real estate as capital gains, and self-employment taxes on deferred compensation.


Churches' Lobbying And Campaigning: A Proposed Statutory Safe Harbor For Internal Church Communications, Edward A. Zelinsky Jul 2017

Churches' Lobbying And Campaigning: A Proposed Statutory Safe Harbor For Internal Church Communications, Edward A. Zelinsky

Articles

President Trump, reiterating the position he took during the presidential campaign, has recently reaffirmed his pledge to “get rid of and totally destroy the Johnson Amendment,” the provision of the Internal Revenue Code which prohibits tax-exempt institutions from participating in political campaigns. The Code also bars tax-exempt institutions, including churches, from substantial lobbying activities.

Rather than the blanket repeal of the Johnson Amendment proposed by President Trump, I argue for a statutory safe harbor for the internal communications of churches. This limited safe harbor would protect in-house church discussions from both Section 501(c)(3)’s ban on substantial lobbying and from that …


Advocating For Clients Whose Debts Were Assigned By The Irs To A Private Collection Agency, Michael Baillif, Robert D. Probasco, Miranda Rhyne Jun 2017

Advocating For Clients Whose Debts Were Assigned By The Irs To A Private Collection Agency, Michael Baillif, Robert D. Probasco, Miranda Rhyne

Robert Probasco

No abstract provided.


Advocating For Your Client In Trade And Business Expense Cases - Hobby Losses, Rosty Shiller, Robert D. Probasco, Miranda Rhyne Jun 2017

Advocating For Your Client In Trade And Business Expense Cases - Hobby Losses, Rosty Shiller, Robert D. Probasco, Miranda Rhyne

Robert Probasco

No abstract provided.