Tax Law Commons^™

Vultures In Eagles' Clothing: Conspiracy And Racial Fantasy In Populist Legal Thought, Angela P. Harris

Michigan Journal of Race and Law

This Article has three interrelated aims. First, I will briefly describe the online world of the legal populists. My second aim in this Article is to give an account of legal populism that connects it with the American tradition of conspiracy theory and with the political consciousness of survivalism. My third and final aim in this Article is to examine, as David Williams has done in a wonderful series of articles, the relationship between the nation dreamed of by many legal populists and the one inhabited by state-sanctioned legal insiders.

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 …

Regulate, Don't Eliminate, 527s, Donald B. Tobin

Faculty Scholarship

No abstract provided.

Motion For Leave To File Brief And Brief Of The National Taxpayers Union, The Nevada Manufacturers Association, The Howard Jarvis Taxpayers Foundation, Americans For Limited Government, Americans For Tax Reform, The Club For Growth, Nevada Corporate Headquarters, Inc., The Nevada Motor Transport Association, The Retail Association Of Nevada, And The Reno-Sparks Chamber Of Commerce, As Amici Curiae In Support Of Petitioners, Paul E. Salamanca

Law Faculty Advocacy

No abstract provided.

The Most Rational Branch: Guinn V. Legislature And The Judiciary's Role As Helpful Arbiter Of Conflict, Jeffrey W. Stempel

Scholarly Works

When the Nevada Supreme Court decided Guinn v. Legislature, one would have thought from reading the popular press accounts that the court had forcibly displaced the State legislature by means of a violent coup d'etat. Newspaper accounts of the decision referred to it as a usurpation of power in violation of clear constitutional language, belittling the court in language sometimes more appropriate to the baseball bleachers than to serious editorial commentary. Following suit, politicized elements of the citizenry began a recall effort (seemingly unsuccessful as of this writing) directed at the court as well as joining the chorus of criticisms. …

Charitable State Registration And The Dormant Commerce Clause, Charles Nave

William Mitchell Law Review

Charitable solicitation in the U.S. is regulated by “the several States.” For most of the nation's history, charities tended to be local endeavors, raising money and providing relief in their immediate vicinities. In the latter half of the twentieth century, charities increasingly grew beyond these local origins as new technologies enabled even the smallest charities to develop a national reach with direct mail and telemarketing campaigns. Nevertheless, primary authority for regulating charitable solicitations remained with the states.

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 …

Justice Scalia's Tax Jurisprudence, Stephen T. Black, Katherine D. Black

Law Faculty Scholarship

Justice Scalia is an outspoken conservative acclaimed for his remarkable intellect and scholarship, and is noted for his adherence to the principle of judicial restraint. He pursues what he insists is an "originalist" path that relies on the Constitution's actual text in decision-making. He works hard to try to maintain constitutional interpretation that does not change from case to case.

So what happens when an "originalist"--concerned that Congress writes imprecise legislation and then leaves its interpretation and application in the hands of administrative agencies or, worse yet, the courts-is forced to deal with tax issues? This article takes a look …

The Canon That Tax Penalties Should Be Strictly Construed, Steve R. Johnson

Scholarly Publications

No abstract provided.

The Constitution Matters In Taxation, Erik M. Jensen

Faculty Publications

These articles, from a colloquy on the taxing power, are part of an ongoing-some might say endless-debate between the author and Professor Calvin Johnson about the meaning of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment. The author argues that the Direct-Tax Clauses were intended to be a significant limitation on the national taxing power, and that the Amendment ought to be interpreted accordingly-to have exempted only one category of taxes, taxes on incomes, from the apportionment rule that otherwise applies to direct taxes.

The Export Clause, Erik M. Jensen

Faculty Publications

This article examines the origins and meaning of the Export Clause in Article I, section 9 of the United States Constitution, which provides that "[n]o Tax or duty shall be laid on Articles exported from any State."

Part I of the article considers the original understanding of the Export Clause, concluding that, without the Clause, the Constitution would not have been adopted. In light of the Export Clause's significance in the constitutional structure, Part II examines the Supreme Court's decisions in United States v. International Business Machines Corp., 517 U.S. 843 (1996) (IBM), and United States v. United States Shoe …

Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen

Law Faculty Scholarly Articles

The Equal Protection Clause of the Fourteenth Amendment generally acts as a legal limit on the permissible bounds of government action. Accordingly, public universities and other government entities are constitutionally prohibited from engaging in acts that violate equal protection of the laws. The Supreme Court recently reinforced this point when it ruled, in two related cases, that public universities may consider the race of applicants when making admissions decisions, so long as an applicant's race does not amount to a deciding factor when granting admission. By its very terms, the constitutional limitation imposed by the Equal Protection Clause only directly …

Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin

Faculty Scholarship

This report examines the decision of the U.S. District Court for the Southern District of Alabama in National Federation of Republican Assemblies v. United States, which dealt with section 527 political organizations.

Pay Equity: A Fundamental Human Right, Margot Young

All Faculty Publications

This paper undertakes the limited task of determining what interpretive consequences, if any, might flow from the removal of federal pay equity provisions from their current location in the Canadian Human Rights Act and placement of such provisions in their own stand-alone legislation. Part of the interpretive stance courts currently bring to their consideration of the federal pay equity provisions reflects the placement of these provisions within federal human rights legislation. Courts have held that human rights legislation has a special nature or quasi-constitutional status. This status results from the fundamental character of the values the legislation expresses and the …

Charities And The Constitution: Evaluating The Role Of Constitutional Principles In Determining The Scope Of Tax Law's Public Policy Limitation For Charities, David A. Brennen

Law Faculty Scholarly Articles

This Article expands the discussion of whether tax-exempt charities, for constitutional law purposes, should be treated as government actors, as private actors or as something in between. While government actors are subject to constitutional law restrictions concerning discrimination and free speech, private non-government actors are not generally subject to these same restrictions. Although tax-exempt charities are often thought of as sovereigns and, thus, government-like, the fact remains that charities are private entities created to serve public purposes. As private entities, charities - like all other private entities - are not necessarily bound by constitutional law principles. Still, the many “public” …

Restoring Politics To The Commerce Clause: The Case For Abandoning The Dormant Commerce Clause Prohibition Of Discriminatory Taxation, Edward A. Zelinsky

Articles

No abstract provided.

The Irs As Super Creditor, Steve R. Johnson

Scholarly Publications

The IRS is a super creditor in the sense that its efforts to collect tax debts are free of restrictions imposed by state law on other creditors. This principle is no novelty. Several recent developments, though, have involved interesting applications of it. Part I of this article explains the principle. Part II examines recent applications of it.

Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld

Faculty Scholarship

The restriction on church participation in political campaigns contained in the Internal Revenue Code operates uneasily. It appears to serve the useful purpose of separating the spheres of religion and electoral politics. But the separation often is only apparent, as churches in practice signal support for a particular candidate in a variety of rays that historically have not cost them their exemptions. Although the limited enforcement by the Internal Revenue Service has reflected the sensitive nature of the First Amendment values present, the federal government should provide more formal elaboration by statute or regulation. Focus on the use of funds …

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

Articles

The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

Bad Medicine: Erisa's Equitable Remedies And The Preemption Of Fundamental Legal Rights, 34 J. Marshall L. Rev. 583 (2001), Marilyn Lablaiks

UIC Law Review

No abstract provided.

Judicial Funding And Taxation Mandates: Will Missouri V. Jenkins Survive Under The New Federalism Restraints?, Janice C. Griffith

Suffolk University Law School Faculty Works

The judiciary frequently mandates costly institutional reforms to correct state and local governmental constitutional violations. This Article examines the unprecedented equitable power exercised by a federal district court in its oversight of a school desegregation remedial plan in Kansas City, Missouri at a cost exceeding $1.8 billion. The district court ordered taxation to ensure funding for the remedial plan and directed local authorities to disregard state law limitations that barred such taxation.

Dean Griffith criticizes the judiciary's disregard of remedial plan costs in devising institutional reforms. She proposes that courts apply a balancing test in the remedial process -- weighing …

State Taxation Of Interstate Commuters: Constitutional Doctrine In Search Of Empirical Analysis, David Schultz

Touro Law Review

No abstract provided.

The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn

Articles

Since 1919, statutory tax law has excluded from gross income compensatory damages received on account of a personal injury or sickness.1 The current version of that exclusion is set forth in section 104 (a) (2) of the Internal Revenue Code of 1986.2 The construction of that exclusion, both by the courts and by the Commissioner, underwent significant alterations over the 80-year period that the provision has existed.3 The statute itself was amended several times, most recently in 1996.4 It is the 1996 amendment that has raised a constitutional issue concerning the validity of a portion of the statute.5

Will Surfing The Web Subject One To Transient Tax Jurisdiction? Why We Need A Uniform Federal Sales Tax On Internet Commerce, Aaron G. Murphy

Seattle University Law Review

This Comment considers how Internet sales could be taxed if Congressional action is taken to remove the Commerce Clause impediments, which would leave only Due Process Clause limitations on Internet taxation. Though three potential solutions are addressed and analyzed for their potential treatment under the Due Process Clause, this Comment concludes that a federal uniform tax on Internet sales of goods will achieve the best balance of interests while avoiding Due Process problems. Part Two provides the reader with a basic description of the current law in the area of sales and use taxes and the problems the Internet poses …

Conterm Ltd. V. Finance Ministry, Itzchak Zamir, Aharon Barak, Mishael Cheshin

Translated Opinions

Facts: The petitioner acquired a license from the Customs Authority to operate a licensing warehouse on land in dispute between it and the Port and Train Authority. The Customs Authority asked for proof that the petitioner had a right in the land, as required by the regulations, and in return it received an agreement that did not appear to address such a right. The Customs Authority granted the license anyway. When it became aware of the dispute over the land, it refused to renew the license. The central question is whether the petitioner had a duty to disclose the existence …

Section 254 Of The Telecommunications Act Of 1996: A Hidden Tax?, Nichole L. Millard

Federal Communications Law Journal

Congress has the sole power to levy and collect taxes. The Supreme Court has ruled that Congress may delegate this authority to administrative agencies so long as the will of Congress is clearly defined in the legislation. However, section 254 of the Telecommunications Act of 1996 operates as an unconstitutional delegation of Congress' authority to tax. This legislation provides the FCC with unfettered discretion in defining the boundaries of universal service and the authority to mandate that all consumers of telecommunications services subsidize the cost for low-income and rural consumers, as well as schools, libraries, and health care providers.

Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein

Scholarly Works

The states' provision of tax incentives designed to encourage economic development within their borders has long been a feature of the American legislative landscape. Today every state provides tax incentives as an inducement to local industrial location and expansion. Indeed, scarcely a day goes by without some state offering yet another tax incentive to spur economic development, often in an effort to attract a particular enterprise to the state.

The debate over the efficacy and wisdom of state tax and other business incentives is intense and important, as other articles in this Symposium plainly reveal. My purpose here, however, is …

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Scholarly Works

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. the answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Scholarly Works

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

The Unsolved Problem Of The Unfunded Mandate, Edward A. Zelinsky

Articles

No abstract provided.