Tax Law Commons^™

Capital Gains Realizations, Daniel Schaffa

Law Faculty Publications

If there are important nondeductible costs to long-term investing, then higher capital gains tax rates may encourage or discourage investors from realizing accumulated gains. This ambiguity suggests that the sizeable observed effects of capital gains taxes on realizations may partly reflect factors other than the time value of money, such as investor anticipations of future tax rate changes.

Towards An Understanding Of Tax Complexity, Daniel Schaffa

Law Faculty Publications

The study of tax complexity has reached consensus on two things. First, complexity pervades the U.S. tax system. And second, it is not always clear what tax complexity means. Indeed, it is common practice for tax complexity scholarship to note the absence of a universal tax complexity definition and then conduct its inquiry without one. A universal definition of tax complexity has proven elusive because tax complexity means many different (although often related) things. This has made the tax policy analysis of complexity challenging. As an alternative to a definition, this Article proposes a framework with four elements for considering …

Taxing The New With The Old: Capturing The Value Of Data With The Corporate Income Tax In Virginia, Coleman H. Cheeley

Law Student Publications

The Commonwealth of Virginia markets itself as “The Largest Data Center Market in the World.” In 2019, the Northern Virginia market alone was the largest in the United States by inventory, with room to grow. In 2021, data centers in Northern Virginia required an estimated 1,686 megawatts of power; that number is expected to increase by 200 megawatts in the near future, reflecting data centers currently under development. For reference, in 2022, it was estimated that more than 100 homes could be powered by one megawatt of solar power in Virginia. Historically, data centers have been located in the Commonwealth …

Reimagining The Deduction For Employee Compensation, Daniel Schaffa

Law Faculty Publications

U.S. businesses pay trillions of dollars in employee compensation, a substantial fraction of which is deductible for tax purposes. This deduction reduces the taxable income of businesses, ultimately lowering business tax burdens by hundreds of billions of dollars. With a few exceptions, the tax code confers the same deduction to a business for every dollar of employee compensation, regardless of whether that compensation goes to an employee earning millions or an employee earning minimum wage. This is consistent with a pure Haig-Simons income tax, under which any business expense incurred ought to be deductible dollar-for-dollar. But many, if not most, …

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions from the past year. Part I of this Article addresses taxes administered by the Virginia Department of Taxation (the “Tax Department” or “Department”). Part II covers local taxes, including real and tangible personal property machinery and tools, license taxes, and other discrete local taxes.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact …

Taxing The New With The Old: Capturing The Value Of Data With The Corporate Income Tax In Virginia, Coleman H. Cheeley

University of Richmond Law Review

The Commonwealth of Virginia markets itself as “The Largest Data Center Market in the World.”In 2019, the Northern Virginia market alone was the largest in the United States by inventory, with room to grow. In 2021, data centers in Northern Virginia required an estimated 1,686 megawatts of power; that number is expected to increase by 200 megawatts in the near future, reflecting data centers currently under development. For reference, in 2022, it was estimated that more than 100 homes could be powered by one megawatt of solar power in Virginia. Historically, data centers have been located in the Commonwealth due …

Tax-Free And The Offshore Imaginary, Allison Anna Tait

Law Faculty Publications

Much of the legal geography of wealth and wealth inequality—the cartography of capitol distribution and financial concern—is easily expressed in coordinates that define neighborhoods and visible in structured spaces of both confinement and opportunity. There are elite zip codes, million-dollar blocks, and pockets of poverty across the landscape. Some geographic localizations of family money tend, however, more toward the offsite, the clandestine, and most particularly the offshore. For high-wealth families and individuals—and the financial institutions that cater to them—the dream of finding offshore islands and locating off-map comes with many benefits since remote siting promises not just the spatial privacy …

A Beginner's Guide To Cryptocurrencies: Explaining The Technologies Behind Cryptocurrencies, How The United States Taxes And Regulates Them, And Offering Changes To The Existing Taxation And Regulation Schemes, J. Merritt Francis

Law Student Publications

The United States federal government has attempted to use its existing regulatory and taxation schemes to regulate and tax cryptocurrencies, while many individuals are still unsure as to what cryptocurrency really is. The Securities and Exchange Commission and the Commodities Future Trading Commission have both asserted their jurisdiction over cryptocurrency, resulting in unclear guidance for developers in the cryptocurrency space and a failure to adequately protect investors. Further, the Internal Revenue Service taxes cryptocurrency like a security rather than a currency, which disincentivizes adopting cryptocurrency as a form of payment. Nevertheless, although cryptocurrencies are taxed like securities, there are tax …

The Haunting Of Wealth Law, Allison Anna Tait

Law Faculty Publications

Wealth law is full of ghosts, ghosts everywhere all at once. As a form of both preservation and disruption, a form of continuance as well as a form of interruption, ghosts are reminders of the past in its multiple forms. But they are also figures that prompt consideration of the present as well as speculation about the future. Jacques Derrida, who suggested the idea of “hauntology,” posited haunting and the ghostly as being “time out of joint,” a reference to Hamlet’s confused cry upon seeing his father’s ghost that Derrida analyzes extensively. In this sense, ghosts are akin to inheritance, …

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, and discrete local taxes. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in …

Utilizing Tax Incentives To Increase Gender Parity On Corporate Boards, Mary E. Tursi

University of Richmond Law Review

Women are drastically underrepresented in positions of power and prominence in the United States. As of 2021, women hold only thirty percent of board seats on the S&P 500. The number is much smaller for private corporations. One study found that in 2020, women occupied only eleven percent of board seats for private corporations. Given these statistics, it is unsurprising that a 2021
study predicts that corporate boards will not reach gender parity until 2032.

This underrepresentation matters for several reasons. First, the lack of gender equity on corporate boards is blatantly sexist. This disparity should matter for anyone who …

The Pain Of Paying Taxes, Gary M. Lucas Jr.

University of Richmond Law Review

With a few caveats, standard economic models assume that, from society’s perspective, the payment of a tax constitutes a costless transfer from the taxpayer to the government. The financial loss to the taxpayer is exactly offset by the financial gain to the government, which can use the resulting tax revenue for the benefit of its citizens. In other words, paying taxes forces taxpayers to forgo private consumption, but the resulting loss in utility can be counterbalanced by an increase in utility from government spending. In fact, if the government spends wisely on beneficial public goods that are undersupplied by private …

The Intergenerational Equity Case For A Wealth Tax, Daniel Schaffa

Law Faculty Publications

Intergenerational equity is commonly set aside in favor of other policy objectives, perhaps because of the extreme challenges inherent in adopting and applying an intergenerational equity normative framework. Even when there is a near consensus that the choices of today will have substantial costs in the future, these costs are often downplayed or disregarded. This Article asks whether there are measures that might offer redress to a generation for the costs imposed on it by its predecessors and finds that a one-time wealth tax is a promising option. Although its analysis applies more generally, this Article focuses on the widely …

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (“Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year.

Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, and discrete local taxes.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia …

Changing Lanes: Tax Relief For Commuters, Hayes R. Holderness

Law Faculty Publications

Tax law reaches all parts of life, and societal expectations about life's activities often affect how the law is applied. As those expectations change, application of the law should be expected to change in turn. This essay highlights changing societal views about commuting, particularly as a result of the COVID-19 pandemic, to demonstrate how even long-standing positions under the tax law can be quickly uprooted. Specifically, as working from home becomes standard, taxpayers should be afforded tax relief when required to commute into the workplace, despite the fact that the tax law traditionally has rejected such relief.

Law's Ability To Further The "Menstrual Movement", Christopher A. Cotropia

Law Faculty Publications

"The current menstrual movement calls for overcoming the cultural stigma associated with menstruation, achieving “menstrual equity,” and ending “period poverty.” The stigma the movement seeks to address is that menstruation is seen as taboo, unclean, and impure. The movement’s aims are twofold: First, it wants to increase awareness of menstruation and remove discrimination against those who menstruate, thus achieving menstrual equity. Second, it intends to provide greater access to menstrual hygiene products (“MHPs”), particularly for homeless and lower income people, thus eliminating period poverty. To achieve these goals, the movement is advocating to legislatively eliminate the “tampon tax” and increase …

Taxation, Craig D. 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 Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the …

The Economic Efficiency Case Against Business Tax Privacy, Daniel Schaffa

Law Faculty Publications

By statute, business tax returns are not publicly available. But with public access, investors would acquire useful information that would help them make better investing decisions; business tax compliance and planning would become more uniform, preventing tax-savvy firms from gaining an advantage over other relatively more productive firms; and businesses could learn from one another, which would spare firms the cost of redundantly developing the same tax strategies. In the long run, these efficiency gains could result in lower prices, higher wages, more innovation, more leisure, and better investment returns. In the debate over business tax privacy, these sorts of …

Taxation, Craig D. 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 Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia …

Max's Taxes: A Tax-Based Analysis Of Pet Trusts, Gerry W. Beyer, Jonathan P. Wilkerson

University of Richmond Law Review

No abstract provided.

Navigating 21st Century Tax Jurisdiction, Hayes R. Holderness

Law Faculty Publications

Hailed as a massive victory for the states, the Supreme Court’s 2018 decision in South Dakota v. Wayfair, Inc. brought dated state tax jurisdiction standards into the twenty-first century, freeing the states to tax internet vendors. However, the decision left the larger state tax jurisdiction doctrine undertheorized and at a crossroads: should the doctrine concern itself only with notice and fairness issues akin to those found in the due process personal jurisdiction realm, or should it also concern itself with protecting interstate commerce from undue state tax burdens?

This Article argues for the latter path by developing a robust theory …

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 …

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 …

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.

Questioning Quill, Hayes R. Holderness

Law Faculty Publications

The physical presence rule of Quill Corp. v. North Dakota is under increasing attack from the “Kill Quill” movement — a consortium of state tax administrators, industry leaders, and academics opposed to the decision. The physical presence rule prohibits states from requiring many out-of-state vendors to collect taxes on goods sold into the states. Kill Quill states have grown increasingly aggressive, and litigation is well underway in South Dakota and Alabama over those states’ direct disregard for the rule. As a petition to the Supreme Court for certiorari grows closer, the case for overturning the physical presence rule remains cloudy. …

Congress Should Sprinkle Some Salt On The Federal Courts, Hayes R. Holderness

Law Faculty Publications

Observers of the state and local tax world regularly note the seemingly irresponsible actions so often taken by state revenue agencies, by state courts, and by state legislatures — a few recent examples of states acting badly are set forth below. In many ways federal law has encouraged these types of actions by placing limited checks on the states. The federal Tax Injunction Act (TIA) and the common law comity doctrine keep federal courts off the states’ backs. Also, the Supreme Court’s South Dakota v. Wayfair Inc. decision and its Murphy v. National Collegiate Athletic Association decision, in which state …

The Case For Preempting Salt Cap Workarounds, Hayes R. Holderness

Law Faculty Publications

In late 2017 the Tax Cuts and Jobs Act (P.L. 115-97) was passed into law. Controversy instantly ensued. One major controversy revolves around the capping of the Internal Revenue Code section 164 state and local tax deduction at $10,000 per taxpayer (the SALT cap). Viewed by many blue states as an attack on their citizens, the SALT cap has spurred counterattacks in the form of state legislation designed to provide taxpayers with an avenue to counter the effects of the SALT cap (the SALT cap workarounds). While others have and are considering the effectiveness of the SALT cap workarounds, this …

Who Benefits From Repealing Tampon Taxes? Empirical Evidence From New Jersey, Christopher A. Cotropia

Law Faculty Publications

Many state and local governments exclude some medical products from the sales tax base, including some that are primarily used by men such as hair growth products. However, tampons and other menstrual hygiene products are subject to sales taxes in most states. A recent social movement advocates for the repeal of these “tampon taxes” and several class action lawsuits have been filed against states citing equal protection violations. In this article, we use the 2005 elimination of menstrual hygiene products from the sales tax base in New Jersey as a natural experiment to study who benefits from the repeal of …

A Primer On Able Accounts, Christopher T. Mcgee, G. Alisa Ferguson

University of Richmond Law Review

No abstract provided.