Tax Law Commons^™

Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court , Diane L. Fahey

Cleveland State Law Review

Commentators have argued that the Tax Court should fill in the gaps in its statutory authority for collection due process appeals by turning to traditional administrative law jurisprudence, including the APA, which suggestion the Tax Court has resisted despite the fact that the federal district court did so. The majority of the Tax Court insists that it has never been subject to administrative law jurisprudence or the APA, nor could it be. Most of the courts of appeals that have considered the issue have held that the Tax Court is bound by the APA and traditional administrative law jurisprudence when …

Governing Board Accountability: Competition, Regulation And Accreditation, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

This article examines the three primary ways in which the governing boards of American colleges and universities are held to account: (1) competition; (2) regulation, including state nonprofit corporation laws, tax laws, and licensing laws; and (3) accreditation. It begins by tracing how lay (meaning nonfaculty) governing boards became the dominant form of governance in American higher education. It argues that governing boards provide American institutions of higher education with an exceptional degree of autonomy from state control and that, together with the shared governance approach that gives faculties primary responsibility for academic matters, they have been a vital factor …

Sparks Nugget. State Tax Exemption Of Food Used By Casinos For Comped Meals, Steve Johnson

UNLV Gaming Law Journal

In their search for new sources of revenue, states have legalized and sought to tax many kinds of gaming. Forty-eight of the fifty states of the United States permit one or more types of legal gaming. An important technique in casino and some other types of gaming is giving “comps” – complimentary goods or services – to player-customers. A frequent type of comp is free meals on the casino premises or elsewhere. Gaming establishments also often give free meals to their employees.

Comps have been controversial for federal income tax purposes. A recent Nevada case, Sparks Nugget, and related cases …

A Response To Professor Camp: The Importance Of Oversight, Leslie Book

Working Paper Series

In past writings and in an upcoming article by Professor Bryan Camp, The Problem of Adversarial Process in the Administrative State, 83 IND. L. J. ### (2008), Professor Camp criticizes the procedural protections Congress added in the tax collection process, noting the limitations of adversary proceedings in the IRS’s tax collection process. In particular, Professor Camp strongly criticizes the collection due process (CDP) rights that were part of the landmark IRS Restructuring and Reform Act of 1998. Given the size of the tax gap, and likely increasing calls for the IRS to do a better job in reducing that tax …

Give The Tax Court Transfer Power And Plenary Civil Tax Jurisdiction, Steve R. Johnson

Scholarly Publications

A recent decision again raises questions about the powers that the Tax Court does and should possess. In Mobley v. Commissioner, No. 07-2019 (6th Cir. July 8, 2008), Doc 2008-14970, 2008 TNT 132-13, the Sixth Circuit affirmed a procedural decision of the Tax Court. The Tax Court dismissed a petition because it lacked jurisdiction, and it rejected the taxpayers’ request to transfer the case to a district court. The Tax Court concluded, and the Sixth Circuit agreed, that the Tax Court lacks transfer power. Under 28 U.S.C sections 1631 and 610, the power to transfer cases is conferred only upon …

The Future Of Social Security: Principles To Guide Reform, 41 J. Marshall L. Rev. 1061 (2008), Kathryn L. Moore

UIC Law Review

No abstract provided.

The Vesting, Modification, And Financing Of Public Retiree Health Benefits In Light Of New Accounting Rules, 41 J. Marshall L. Rev. 1147 (2008), John Sanchez

UIC Law Review

No abstract provided.

What's Good For The Goose Is Not Good For The Gander: Sarbanes-Oxley-Style Nonprofit Reforms, Lumen N. Mulligan

Faculty Works

In this article, I contend that these Sarbanes-Oxley-inspired, state, nonprofit reforms, particularly the costly disclosure requirements, will be of little value in the effort to improve ethical nonprofit board governance. The article proceeds as follows. Part II provides a primer on the oversight of nonprofit organizations. Part III reviews the recent Sarbanes-Oxley-like nonprofit reforms introduced in seven states. Part IV contends that the disclosure-focused reforms, which form the bulwark of these acts, will not foster ethical nonprofit board governance. Part V argues that this failure stems from the inappropriate application of a stockholder-based, normative perspective in the nonprofit sector. The …

Using Ethanol As A Fuel To Reenergize Free Trade Area Of The Americas Negotiations, Marcel De Armas

ExpressO

Currently the United States imposes a 2.5 percent ad valorem tax along with a 14.27 cents per liter tax on imported ethanol from countries with normal trade relations under the harmonized tariff schedule. However, the United States exempts many countries from this tariff or reduces the tariff under various free trade agreements or initiatives. The issues that resulted in Doha’s failure also caused FTAA negotiations to temporarily stall since both Brazil and the United States wanted certain FTAA issues negotiated at the WTO level. The United States could initiate this process with a discussion of reducing or eliminating its ethanol …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Tribal-State Gaming Compacts And Revenue Sharing Provisions: Are The States Upping The Ante? , Richard L. Skeen

ExpressO

In the ten years following, the Supreme Court’s ruling in the Seminole Tribe v. Florida, Indian Gaming has grown to over a $19 billion a year industry, in 26 States, involving over 241 Approved Class III Tribal Gaming Ordinances. States have been eager to get a piece of this ever-increasing pie. Some commentators have predicted that States will be reluctant to enter into new compacts or renew existing compacts, however, other’s have indicated that States will continue to demand a percentages of Gaming revenues.

This comment addresses the central issue of whether the Tribal-State compacts entered into subsequent to the …

Swallows As It Might Have Been: Regulations Revising Case Law, Steve R. Johnson

Scholarly Publications

This is the second of two reports on the Swallozvs Holding decision. 1 In that case, the Tax Court, over three dissenting opinions, invalidated a timing rule contained in a Treasury regulation under IRC section 882. That timing rule provided that some foreign corporations could not claim otherwise available deductions if their returns for the tax year were filed outside an 18-month grace period. The majority and the dissenters clashed over which line of authority – Chevron 2 or the pre-Chevron tax-specific line of decisions typified by National Muffier3 – provides the governing standard for evaluating the validity of …

Designing Interstate Institutions: The Example Of The Ssuta, Brian D. Galle

ExpressO

This Article presents a case study in designing cooperative interstate institutions. It takes as its subject the Streamlined Sales and Use Tax Agreement (“SSUTA”), a recently-developed compact among the States now awaiting congressional ratification. The SSUTA’s primary goal is to bring uniformity to the field of state and local sales taxation, a regime in which multi-jurisdictional sellers now confront literally thousands of different sets of rules. I predict here that the SSUTA as currently designed is unlikely to accomplish that goal, and attempt to suggest possible amendments that could improve its expected performance. From these efforts I extract larger lessons …

Swallows Holding As It Is: The Distortion Of National Muffler, Steve R. Johnson

Scholarly Publications

I like big ideas. The opportunity to work with them, and hopefully to add to them, is one of the joys of academic life. But perspective also is required. Not everything genuinely presents "macro" issues. As Freud supposedly said, “Sometimes a cigar is just a cigar.”

In Swallows Holding Ltd. v. Commissioner, the Tax Court, over three dissenting opinions, invalidated a return-filing timing rule in a Treasury regulation under section 882 of the !RC. It is clear that what drove the majority opinion was the perception that the timing rule was contrary to many previous cases interpreting the statute. As …

Substance Over Form? Phantom Regulations And The Internal Revenue Code, Amandeep S. Grewal

ExpressO

This paper addresses the appropriate response to tax statutes that call for the issuance of regulations, but that have been ignored by the Secretary. The courts and the IRS have taken the unusual step of treating these statutes as self-executing, notwithstanding the absence of regulations, and have invoked phantom regulations to enforce the statutes. Several commentators have analyzed the Tax Court's and the IRS's approaches, but have focused mostly on cases interpreting delegations found in the Internal Revenue Code. Because those cases themselves are inconsistent, it is not possible to extract a clear rule from analysis of those cases alone. …

Discarded Deference: Judicial Independence In Informal Agency Guidance, Christopher M. Pietruszkiewicz

ExpressO

In the past few years, the Supreme Court has resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within traditional role of the courts as sole interpreters of the law.

This 1940s decision has evolved such that deference to the views of administrative agencies has become a matter of judicial discretion, finding deference when the views of an agency parallel …

Discarded Deference: Judicial Independence In Informal Agency Guidance, Christopher M. Pietruszkiewicz

ExpressO

In the past few years, the Supreme Court has resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within traditional role of the courts as sole interpreters of the law.

This 1940s decision has evolved such that deference to the views of administrative agencies has become a matter of judicial discretion, finding deference when the views of an agency parallel …

Agency Activism As A New Way Of Life: Administrative Modification Of The Internal Revenue Code Through Limited Issue Focused Examinations, W Edward Afield

Faculty Publications By Year

In the name of increasing efficiency and better utilizing limited resources, the IRS has begun to adopt audit policies that overly favor taxpayers and greatly hinder the IRS’s ability to perform thorough audits. Highlighting this trend is a relatively new audit technique used by the Large to Mid-Size Business Division (LMSB), known as the Limited Issue Focused Examination (LIFE) Process. Under LIFE, the LMSB has attempted to involve taxpayers in the audit process by sharing responsibility for timely completion of the audit and has attempted to streamline the audit by reducing the scope of issues examined and applying materiality thresholds …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Optrex And The Attorney-Client Privilege: Implications And Potential Significance, 39 J. Marshall L. Rev. 1 (2005), Sandra Liss Friedman, Helena D. Sullivan

UIC Law Review

No abstract provided.

Remands In Trade Adjustment Assistance Cases, 39 J. Marshall L. Rev. 9 (2005), Munford Page Hall Ii

UIC Law Review

No abstract provided.

An Importer's Election: Whether To Invoke Attorney Advice In Defense Or To Preserve Privilege, 39 J. Marshall L. Rev. 17 (2005), Patricia M. Mccarthy

UIC Law Review

No abstract provided.

Tax Law Uncertainty And The Role Of Tax Insurance, Kyle D. Logue

Articles

In the broadest sense, this is an article about legal or regulatory uncertainty and the role that private and public insurance can play in managing it. More narrowly, the article is about tax law enforcement and the familiar if ill-defined distinctions between tax evasion, tax avoidance, and abusive tax avoidance. Most specifically, the article is about a new type of tax risk insurance policy, sometimes called tax indemnity insurance or transactional tax risk insurance that provides coverage against the risk that the Internal Revenue Service (Service) will disallow a taxpayer-insured's tax treatment of a particular transaction. The question is whether …

The Collection Due Process Rights: A Misstep Or A Step In The Right Direction?, Leslie Book

Working Paper Series

This article defends one of the more controversial parts of the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA 98) the collection due process (CDP) provisions. CDP gives taxpayers the right to independent administrative and judicial review of IRS decisions to use its awesome administrative collection powers, powers that have long made the IRS a feared creditor.

Prior to CDP’s enactment, the IRS had the power to collect taxes from taxpayers without judicial review of administrative collection determinations. This power, atypical for creditors which often must get judicial approval for summary collection action, led many observers to …

Further Thoughts On Kanter And Ballard, Steve R. Johnson

Scholarly Publications

On December 7, 2004, the Supreme Court will hear oral arguments in the consolidated Kanter and Ballard cases. The Tax Court had substantially upheld the IRS’s determinations of large deficiencies and fraud penalties against several taxpayers. The taxpayers argued in part that the Tax Court's application of its Rule 183 violated both due process and applicable statutes. I disagreed with those arguments then, and I continue to do so now. On appeal, the taxpayers' challenges to Rule 183 were rejected by the Fifth, Seventh, and Eleventh Circuits. The decisions of those circuits are sound and should be affirmed.

Both an …

Administrability-Based Tax Simplification, Steve R. Johnson

Scholarly Publications

The Boyd School of Law is a vibrant place, and our trajectory continues to move strongly in the right direction. One of the things that has been so important to us is the excellent support we have received from so many in and around Nevada. An example of that support brings us together tonight. The Wiegand Foundation has endowed a professorship at the Law School to support the study of tax law. I am fortunate to be the current holder of that professorship. This address is the first formal event memorializing the Wiegand Foundation’s support for scholarship and for Law …

The Paradox Of The Misuse Of Administrative Law In Erisa Benefit Claims, 37 J. Marshall L. Rev. 727 (2004), Mark D. Debofsky

UIC Law Review

No abstract provided.

Note: Get The Balance Right: Finding An Equilibrium Between Charitable Solicitation, Fraud, And The First Amendment In Illinois Ex Rel. Madigan V. Telemarketing Associates, Inc., 538 U.S. 600 (2003), Christopher R. Sullivan

William Mitchell Law Review

This Note first examines the history of the relevant law in the areas of fraud, charitable solicitation, and prior restraints. Specifically, it examines the three leading cases on regulation of charitable fundraising speech: Schaumburg, Munson, and Riley. Next, the Note discusses the history and holding of Illinois ex rel. Madigan v. Telemarketing Associates, Inc. Next, this Note will explore the holding in Telemarketing Associates in light of Schaumburg and its progeny. This analysis includes a survey of recent and pending fraud litigation against charities and their fundraisers, and a review of the Federal Trade Commission's “Operation Phoney Philanthropy.” Finally, the …

The 1998 Act And The Resources Link Between Tax Compliance And Tax Simplification, Steve R. Johnson

Scholarly Publications

Tax compliance sometimes is thought of as purely a matter of administration. But there are important connections between substance and procedure.' Both affect compliance. This article explores how simplification of the substantive tax law can improve compliance. The particular emphasis is on how simplification can liberate human and material resources for the IRS without which otherwise well conceived efforts to improve compliance are likely ultimately to fail.

Tax Incentives: A Means Of Encouraging Research And Development For Homeland Security?, Jennifer L. Venghaus

University of Richmond Law Review

No abstract provided.