Tax Law Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Superficial Proxies For Simplicity In Tax Law, Emily Cauble

University of Richmond Law Review

Simplification of tax law is complicated. Yet, political rhetoric surrounding tax simplification often focuses on simplistic, superficial indicators of complexity in tax law such as word counts, page counts, number of regulations, and similar quantitative metrics. This preoccupation with the volume of enacted law often results in law that is more complex in a real sense. Achieving real simplification—a reduction in costs faced by taxpayers at various stages in the tax planning, tax compliance, and tax enforcement process—often requires enacting more law, not less. In addition, conceptualizing simplicity in simplistic terms can leave the public vulnerable to policies advanced under …

The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman

University of Richmond Law Review

Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax—commonly called the “tampon tax”—represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …

Corporate And Business Law, Christopher L. Mclean

University of Richmond Law Review

The past two years have produced a number of pieces of legislation from the Virginia General Assembly that serve to bring the set of Virginia business entity statutes up to date with its peers around the country. Part I highlights changes to the Virginia Stock Corporation Act (“VSCA”) and the Virginia Nonstock Corporation Act (“VNSCA”). Part II highlights changes to the Virginia Securities Act (“VSA”) and other statutes affecting Virginia business entities. Part III reviews two significant cases that the Supreme Court of Virginia decided over the past two years with respect to Virginia corporate law. Those decisions provided guidance …

Taxation, Craig G. Bell, Michael H. Brady

University of Richmond Law Review

This article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its sections cover legislative activity, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation and the Attorney General of Virginia over the past year.

Gaars And The Nexus Between Statutory Interpretation And Legislative Drafting: Lessons For The U.S. From Canada, Reuven S. Avi-Yonah, Amir Pichhadze

Articles

Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way …

Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren

All Faculty Scholarship

The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the taxing …

Perspectives On The Tax Avoidance Culture: Legislative, Administrative, And Judicial Ambiguity, Henry Ordower

All Faculty Scholarship

Henry Ordower discusses the effect that legislating economic incentives through the tax system has on taxpayer behaviour and explores the resulting difficulty in drawing the line between legitimate and objectionable tax avoidance. He argues that while the attempts to separate the two types of tax avoidance – attempts such as enacting general anti-avoidance rules (GAARs) and following general principles of economic substance – may be partially successful, subsidies delivered through the tax system will inherently limit their effect. The lack of clear delineation between legitimate tax planning and objectionable tax avoidance enables an even firmer embedding of “the culture of …

Taxation – Selection Of Exchange Rate For Translation Purposes -- Where Multiple Exchange Rates Exist For A Foreign Currency And The Underlying Transaction Is Financial In Nature, The Proper Rate For Translation Components Of Taxable Income Is The "Free" Market Rate (Durovic V. Commissioner Of Internal Revenue, 7th Cir. 1976), Tim J. Floyd

Georgia Journal of International & Comparative Law

No abstract provided.

The Enigma Of Wynne, Edward A. Zelinsky

Articles

The five-justice Wynne majority used that case to make a major statement about the dormant Commerce Clause. In many respects, Wynne is an enigma that perpetuates an inherent problem of the Courts dormant Commerce Clause doctrine: the Court declares some ill-defined taxes as unconstitutionally discriminatory because they encourage in-state investment, while other economically equivalent taxes and government programs that similarly encourage intrastate economic activity are apparently acceptable under the dormant Commerce Clause.

Wynne is thus more important than the immediate situation it addresses, and will have consequences beyond the immediate circumstances it addresses. A decision as enigmatic as it is …

The Constitutional Nature Of The United States Tax Court, Brant J. Hellwig

Scholarly Articles

Is the United States Tax Court part of the Executive Branch of government? One would expect that question would be capable of being definitively answered without considerable difficulty. And as recently expressed by the Court of Appeals for the District of Columbia Circuit, that indeed is the case. In the course of addressing a challenge to the President's ability to remove a judge of the Tax Court for cause on separation of powers grounds, the D.C. Circuit rejected the premise that the removal power implicates two branches of government: "the Tax Court exercises Executive authority as part of the Executive …

The Foreign Account Tax Compliance Act: The Solution Or The Problem?, Sophie S. Chou

CMC Senior Theses

Tax evasion has been happening for decades, but after the highly publicized cases with two foreign banks, LGT and UBS, the United States (US) is cracking down on tax evaders. The latest addition to the Internal Revenue Service (IRS)’s repertoire of enforcement tools is the Foreign Account Tax Compliance Act, otherwise known as FATCA. The Act was enacted to incentivize tax information release by foreign financial institutions (FFIs) who would otherwise face a 30% withholding tax on any US source income. The question was whether or not the design of the Act and its implementation successfully met this goal.

This …

Foreword: The Supreme Court's Estate Planning Jurisprudence, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Sophisticated trust and estate counsel must keep up with near-daily developments in the substantive state law of wills, trusts and estates, as well as state and federal laws of wealth transfer taxation. Because of the sheer volume of statutory law and administrative regulations that estate planners must master, it is easy to lose sight of the important role that federal courts play in shaping the field of estate planning. Federal tax cases are routinely heard by the United States Tax Court, the Federal District Courts, the Court of Federal Claims and appellate courts in all circuits. Yet very few tax …

Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard

Journal of Law and Policy

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …

When The Bough Breaks: The U.S. Tax Court's Branch Difficulties, Leandra Lederman

Articles by Maurer Faculty

This essay highlights the confusion over which of the three branches of government (if any) is home to the U.S. Tax Court, which hears over 95% of litigated federal tax cases. This uncertainty recently resulted in a separation of powers challenge to the Tax Court. There is a pressing need for the Tax Court’s status to be resolved, to decrease its insularity and increase transparency and accountability.

The United States Tax Court: An Historical Analysis (2d Ed. 2014), Harold Dubroff, Brant J. Hellwig

Books and Chapters

The second edition leaves largely intact the first four Parts of the original text, which provide a remarkably detailed history of the creation of Board of Tax Appeals through the congressional chartering of the United States Tax Court as a court of record established under article I of the Constitution. Part V is a new chapter devoted to the judicial consideration of the Tax Court’s constitutional status that culminated in the Supreme Court’s 1991 decision in Freytag v. Commissioner.

Whereas the original text addressed procedural matters following the discussion of the historical development of the Court, the second edition …

(Un)Appealing Deference To The Tax Court, Leandra Lederman

Articles by Maurer Faculty

The U.S. Tax Court (Tax Court), which hears the vast majority of litigated federal tax cases, occupies an unusual place in the federal government. It is a federal court located outside of the judicial branch, but its decisions are appealable to the federal courts of appeals. This odd structure, coupled with the court's history as an independent agency in the executive branch, can give rise to important questions, such as the standard of review that should apply to its decisions. In particular, should the courts of appeals treat Tax Court decisions the same as those of district courts in tax …

Restructuring The U.S. Tax Court: A Reply To Stephanie Hoffer And Christopher Walker's The Death Of Tax Court Exceptionalism, Leandra Lederman

Articles by Maurer Faculty

This article is an invited reply to an article in the Minnesota Law Review regarding whether the “reviewing court” provisions of the Administrative Procedure Act (APA) apply to the U.S. Tax Court, the principal court hearing disputes between taxpayers and the IRS. (The Tax Court has repeatedly said that the APA does not apply to it). It argues in part that the question of whether the Tax Court must apply the APA’s standard and scope of review when reviewing IRS action is not as clear as a matter of history and doctrine as Professors Hoffer and Walker argue. The author …

The Aftermath Of Hobby Lobby: Hsas And Hras As The Least Restrictive Means, Edward A. Zelinsky

Articles

In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court held that the Religious Freedom Restoration Act of 1993 (RFRA) does not require closely-held corporations’ employer-sponsored medical plans to provide forms of contraception that shareholders of such corporations object to on religious grounds. The question now raised is how the President, Congress, and the departments of Health and Human Services (HHS), Treasury and Labor, ought to respond to the Hobby Lobby decision.

Scholarship: Daniel Goldberg And William Reynolds

Maryland Carey Law

No abstract provided.

How Long Can This Go On? The Controversy Over The Application Of The Statute Of Limitations To S Corporations And Their Shareholders, J. Marcus Sommers

Pepperdine Law Review

No abstract provided.

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

Articles

This article explores the implications of the U.S. Supreme Court’s decisions in DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn. In Cuno and Winn, the Court held that state taxpayers lacked standing in the federal courts. Because the states have more liberal taxpayer standing rules than do the federal courts, Cuno and Winn will not terminate taxpayers’ constitutional challenges to state taxes and expenditures, but will instead channel such challenges from the federal courts (where taxpayers do not have standing) to the state courts (where they do). Moreover, municipal taxpayer standing in the federal courts, which …

Xilinx Revisited, Reuven S. Avi-Yonah

Articles

On March 22 the Ninth Circuit released its new opinion in Xilinx v. Commissioner, Doc 2010-6163, 2010 WTD 55-42. 1 As has been expected since the panel withdrew its original opinion, it reversed itself and in a 2-1 opinion held for the taxpayer. The opinion makes it pretty clear why the reversal occurred. It was the result of concentrated pressure by the international tax community and the fact that the government was unwilling to defend the theory on which the panel originally decided the case: that the arm’s-length standard of the section 482 regulations does not apply to cost sharing. …

Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt

Faculty Working Papers

In this symposium essay, we investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices. We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justices will view short-term and relatively minor economic downturns—recessions—as attributable to the failures of elected officials, but will consider long-term and extreme economic contractions—depressions—as the result of exogenous shocks largely beyond the control of the government. Accordingly, we predict two patterns of behavior in economic-related cases that come before the Court: (1) in typical times, when the economy cycles through both recessionary and prosperous …

The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, Margot Young

All Faculty Publications

This case comment discusses the judicial decisions in Sagen v. VANOC regarding the constitutional challenge brought by women ski jumpers to their exclusion from the 2010 Vancouver Winter Olympics. While the claimants argued that the constitutional equality provision (section 15 of the Canadian Charter of Rights and Freedoms) had been infringed, the BC courts' decisions focussed on the novelty of the state action problem. At least one level of court accepted that the exclusion was discriminatory but the challenge failed because the decision to exclude lay within the power of the International Olympic Committee, an entity beyond the ambit of …

The Misuse Of Textualism: A Further Reply To Prof. Kahn, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

Because readers have already endured four articles, two by me and two by Prof. Douglas A. Kahn, debating the meaning of section 67(e)(1), I am reluctant to respond to Prof. Kahn’s rejoinder, which appeared in the January 18 issue of Tax Notes. Nevertheless, our disagreement implicates the judicial craft of two U.S. Supreme Court members, Chief Justice John Roberts and Justice Sonia Sotomayor. I therefore feel it important to answer Prof. Kahn’s latest contentions, recognizing my duty to be as brief as possible.

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.

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 …

The Irs's Flawed Solution To The Controversy Over Deductible Claims Against The Estate And The Necessity For A Date-Of-Death Standard, 42 J. Marshall L. Rev. 789 (2009), Lisa K. Johnson

UIC Law Review

No abstract provided.

Baby Ka-Boom! Coming Developments In Erisa Litigation Due To Social, Demographic, And Financial Pressures From The Baby Boom Generation, 41 J. Marshall L. Rev. 1037 (2008), Craig C. Martin, Matthew J. Renaud, Douglas A. Sondgeroth

UIC Law Review

No abstract provided.