Tax Law Commons^™

U.S. International Tax Reform: What Form Should It Take?, Jeffrey M. Kadet

Articles

This article focuses solely on the big picture issue of whether international tax reform should take the form of a territorial system or an alternative full inclusion system. Of course, it is also necessary to compare these possible new systems with the current hybrid deferral system that has been in place for many years.

With little if any explanation of how it might be better for our nation and society as a whole, many persons and commentators whose companies or clients stand to benefit have called for a territorial system. Such persons have included CEOs, members of the professional tax …

Transfer Pricing: Data Dumps And Comparability — Studies From The U.S., U.K., Canada, And Australia, Richard Thompson Ainsworth, Andrew B. Shact

Faculty Scholarship

Comparability is the heart of transfer pricing. The OECD, U.K., Canadian, Australian, and U.S. transfer pricing rules all echo one another on how critically important the comparability analysis is. Performing this analysis and proving comparability, however, is a demanding exercise.

What makes proving comparability so difficult is that the analysis is two sided. Both controlled and uncontrolled transactions must be thoroughly analyzed. Just as much effort needs to be applied to determine the functions, contract terms, risks and the economic conditions for the unrelated party comparables as is spent on analyzing the related parties (taxpayers).

But there is more to …

Territorial W&M Discussion Draft: Change Required, Jeffrey M. Kadet

Articles

The House Ways & Means Committee Discussion Draft proposes a territorial taxation system for the United States. This article published in Tax Notes on 23 January 2012 was taken from the author's comments on the Discussion Draft as submitted to the Committee in conjunction with a hearing held on 17 November 2011. See full comments at http://ssrn.com/abstract=1997482. The full comments include many additional issues not covered in this article.

The Discussion Draft importantly includes a dividend-received deduction of 95% instead of 100% as a mechanism to disallow expenses that are attributable to exempt foreign earnings. This mechanism causes the receipt …

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel

Cornell Law Faculty Publications

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being …

Department Of Health And Human Services V. Florida: Brief Of Law Professors Barry Friedman, Matthew Adler, Et Al., As Amici Curiae In Support Of Petitioners And Reversal On The Minimum-Coverage Provision Issue, Richard Primus

Appellate Briefs

Amici are law professors (listed in Appendix A) who have taught, studied, written about, and have expertise in the Constitution, constitutional history, and the structure and requisites of American federalism.

Amici take no position on the wisdom of the Patient Protection and Affordable Care Act (the "Act"), Pub. L. No. 111-148, 124 Stat. 119 (2010), a question on which their views diverge. Nonetheless, they have a strong interest in and expertise on the legal issue this Court is asked to decide-whether the Act is within Congress's powers. On that question they are of one mind: The Act is constitutional.

Obamacare And The 'What Is A Tax?' Issue – Part I, Steve R. Johnson

Scholarly Publications

One of the hardiest perennials in the garden of state and local tax issues is the question whether particular revenue measures should be classified as taxes or some other type of exaction. The issue has been dispositive in numerous state and local tax cases and, befitting that significance, has been the topic of many reports in this journal.

Given the frequency of the decisions and commentary, authorities cited on the issue constantly evolve. State courts, omnivorous in their search for precedents and rationales, often cite federal cases. Recognizing this, a recent article in State Tax Notes examined decisions of the …

Constructive Dividend Doctrine From An Integrationist Perspective, Anthony P. Polito

Akron Tax Journal

A long standing feature of U.S. corporate taxation is a group of doctrinal devices serving to prevent taxpayer attempts to avoid double taxation of corporate earnings. This Article refers to these devices collectively as the constructive dividend doctrine (hereinafter “CDD”) and analyzes the extent to which the CDD ought to be set aside as counterproductive.

This analysis is grounded in contrasting views of the normative tax treatment of corporate enterprise. On the one hand is the perspective in which the double income taxation of corporate income is normative (the “Double Tax Perspective”). The Double Tax Perspective calls for taxation of …

Decoupling Taxes And Marriage: Beyond Innocence And Income Splitting, Michelle Lyon Drumbl

Scholarly Articles

Fourteen years ago, members of Congress sympathetically listened as divorcees testified to their struggles to raise children while being pursued by the Internal Revenue Service for tax debts, often unknown to them, that were attributable to their ex-husbands' income. Rather than adopting one of many proposals to end joint and several liability, Congress instead elected to expand the grounds on which these individuals could seek relief from such liability. Since that time, taxpayers have seen a steady expansion of the grounds for so-called “innocent spouse relief” that has evolved through a combination of legislative, administrative, and judicial action. Yet the …

Political Hot Potato: How Closing Loopholes Can Get Policymakers Cooked, Stephanie Mcmahon

Faculty Articles and Other Publications

Loopholes in the law are weaknesses that allow the law to be circumvented. Once created, they prove hard to eliminate. Acase study of the evolving tax unit used in the federal income tax explores policymakers' response to loopholes. The1913 income tax created an opportunity for wealthy married couples to shift ownership of family income between spouses, then to file separately, and, as a result, to reduce their collective taxes. In 1948, Congress closed this loophole by extending the income-splitting benefit to all married taxpayers filing jointly. Congress acted only after the federal judiciary and Treasury Department pleaded for congressional …

I.R.C. Section 1014(E) And Gifted Property Reconveyed In Trust, Mark R. Siegel

Akron Tax Journal

The taxpayer’s method of property acquisition is significant in determining the proper income tax or adjusted basis in the property. Distinct adjusted basis rules apply to the transferee of property acquired by purchase, gift, and inheritance. A buyer who purchases property for cash receives an adjusted basis in the property acquired equal to its cost. For property acquired by gift, the general rule is that the donee’s adjusted basis equals the donor’s adjusted basis immediately prior to the transfer. A third income tax basis regime applies to the taxpayer who happens to acquire property by inheritance upon the death of …

Penalty Protection Opinions And Advisor Conflicts Of Interest, David T. Moldenhauer

Akron Tax Journal

This article has five parts. The second part describes the statutory and regulatory standards for taxpayers seeking to rely on tax advice to avoid penalties. The third part describes the cases where a taxpayer has sought to rely on the opinion of a tax advisor with a conflict of interest. Those cases involve three types of situations: (1) tax advisors acting as promoters or brokers of a tax shelter; (2) tax advisors with referral arrangements with tax shelter promoters; and (3) tax advisors that are developers or implementers of a tax strategy. Typically, in the first two types of situations, …

Achieving Meaningful Civil Tax Penalty Reform And Making It Stick, Jeremiah Coder

Akron Tax Journal

This essay examines the historical use of penalties within the tax code, reviews a number of reports that led to the last round of significant penalty reform legislation, and considers existing problems of penalty administration. Several proposals are outlined to ensure that if and when Congress acts to simplify and revise the penalty regime, the reforms will have lasting impact. Part II covers the growth of penalties in the tax system from its original simple form through its significant expansion to the time that the IRS and Congress worked to cut back the complexity of the civil tax penalty regime …

Failing Corporate Tax Transparency And The Immediate Need To Reduce Overburdening Duplicative Tax Reporting Requirements, Ilya A. Lipin

Akron Tax Journal

The benefits to corporate taxpayers from the continuing additions to disclosure requirements have not been obvious. Despite expenditures by corporate taxpayers on compliance, there is evidence that the Service has not been using all of the information it receives from additional disclosure forms.28 Duplicative disclosures of the same or similar tax information that lead to additional costs are of immediate concern to the corporate taxpayer.29 The estimated corporate taxpayers’ compliance tax burden is summarized in Appendix 1. Part II of this article describes in detail key existing reporting requirements such as reportable transaction disclosure statement and Form 8886, disclosure statements …

The Exit Tax: A Move In The Right Direction, Christine Manolakas, William L. Dentino

McGeorge School of Law Scholarly Articles

No abstract provided.

Energy Subsidies, Market Distortion, And A Free Market Alternative, Hans Biebl

University of Michigan Journal of Law Reform Caveat

Gas and coal are cheap. They are cheap because the U.S. government subsidizes their production. The result is that the marketplace does not recognize the true cost of fossil fuels. Without the subsidies, Americans—for the first time in nearly a hundred years—would experience the cost of unsubsidized fossil fuels. In a newly competitive marketplace, renewable sources of energy would be in a better position to compete. Without gas and coal subsidies, clean energy producers, who have not been able to compete with the low price of fossil fuels, might be more willing to invest in “clean, renewable, and more energy …

Go West: How The Irs Should Foster Innovation In Its Agents, T. Keith Fogg

Villanova Law Review (1956 - )

No abstract provided.

Ask For Help, Uncle Sam: The Future Of Global Tax Reporting, Susan C. Morse

Villanova Law Review (1956 - )

No abstract provided.

Personal Foul...Roughing The Taxpayer: The Irs' Triple Penalty On Hardship Distributions, Michael Flynn, Craig C. Minko

Faculty Scholarship

No abstract provided.

Choosing Between Tax And Nontax Delivery Mechanisms For Health Insurance Subsidies, Lawrence Zelenak

Faculty Scholarship

No abstract provided.

Fair For Whom? Amazon Kindles The Fight Over Internet Sales Tax, 46 J. Marshall L. Rev. 357 (2012), Matthew Martin

UIC Law Review

No abstract provided.

The Past, Present, And Future Of Critical Tax Theory: A Conversation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The publication of Taxing America in 1997 is a key milestone in the development of critical tax theory as an intellectual discipline. By identifying and bringing together lawyers and scholars with an interest in the political and discriminatory aspects of tax law, Professor Karen B. Brown and Professor Mary Louise Fellows created one of the first—if not the first—working group of critical tax theorists. The significance of Taxing America is underappreciated both by self-identified critical tax scholars and by others. A published history of the “Critical Tax Conference” notes its antecedents in conferences held in 1995 and 1997, but makes …

Subsidizing Hate: A Proposal To Reform The Internal Revenue Service's Methodology Test, Alex Reed

Fordham Journal of Corporate & Financial Law

Although a wide variety of organizations may qualify as tax-exempt public charities, reform is needed to ensure that hate groups masquerading as educational organizations do not receive preferential tax treatment. Since 1986, the Internal Revenue Service has utilized a methodology test to determine when advocacy of a particular viewpoint may be deemed educational so as to qualify the underlying organization as a public charity. Because Service has been reluctant to apply the test rigorously, however, a number of hate groups have been able to obtain charitable status under the guise of operating as legitimate educational organizations. This Article argues that …

Authentic Reproductive Regulation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In this response to I. Glenn Cohen’s article, Regulating Reproduction, Professor Crawford notes the ways in which Professor Cohen’s questioning of “best interests” logic challenges legal scholars to reexamine received wisdom. She then evaluates Professor Cohen’s critique of “best interests” in the context of income taxation of surrogates. Professor Crawford concludes that Professor Cohen’s “unmasking” project—designed to reveal the authentic reasons for reproductive regulation—enhances the discourse about reproductive law and policy

Reforming The Tax Code: A Tale Of Two Purposes And Paralysis, Gene Magidenko

University of Michigan Journal of Law Reform Caveat

Though the presidential election of 2012 is still some time away, national politics have been in the thick of one for several months now. One of the top issues being debated is the tax code. Most agree that the tax code should be simplified, but to say that the proposals to do this are various is an understatement. This perennial question of reform has been a fixture of the national debate for a long time, so little of what can be said about it is particularly novel. All the same, a brief overview of the purposes behind our system of …

Some Realism About Responsive Tax Administration, Leigh Osofsky

Articles

No abstract provided.

¿Registrar Es Poseer? Un Vistazo Desde El Fundamento De La Posesión, Martín Mejorada Chauca, Fernando Loayza Jordán

Scholarly Articles

Este breve ensayo presenta de forma introductoria un postulado novedoso: entender al acto de registrar como un acto posesorio. Se inicia con una revisión del fundamento de la posesión, desde la perspectiva de su utilidad práctica como herramienta de publicidad, para luego enfocarse en cómo, desde este fundamento, se debe entender que el acto de registrar es un acto posesorio. Posteriormente, se profundiza en algunas características de esta clase de posesión en específico, como su extensión temporal. Finalmente, se termina enunciando algunas consecuencias prácticas indubitables, cuyo posterior estudio exige atención prioritaria.

This brief introductory essay presents a new postulate: to …

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article sets out to analyze both intellectual property laws and tax systems as applied to software. The article also analyzes software within the intellectual property doctrinal framework, and examines both the federal and state tax systems governing software.

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as a …

Sniping Down Ignorance Claims: The Third Circuit In United States V. Stadtmauer Upholds Willful Blindness Instructions In Criminal Tax Cases, Rachel Zuraw

Villanova Law Review (1956 - )

The article presents information on the criminal tax cases and the claims of ignorance of relevant legal duties or misunderstanding. The complexities in the tax code of the U.S., interpretation of willful blindness by the U.S. courts and the standard for conviction are discussed. The non-tax fraud case law, strict interpretation of conscious avoidance in tax statutes and the duty implicitly imposed on taxpayers are also discussed with reference to the trial of Cheek v. United States.

Is United States Corporate Tax Policy Outsourcing America - A Critical Analysis Of The Proposed Tax Holiday For Trapped Cfc Earnings, Robert Bloink

Villanova Law Review (1956 - )

THE debate about how best to reform U.S. corporate tax policy has focused almost exclusively on making U.S. corporations more competitive globally. But the debate often glosses over tax policy's effect on the ultimate beneficiaries of corporate success and failure—U.S. corporate stakeholders. The assumption often has been that healthy, competitive U.S. corporations equal healthy stakeholders—including shareholders, employees, and the U.S. populace as a whole. However, recent economic research has brought the assumption of "trickle down" success into question. This Article suggests an alternate path focused on enhancing the competitiveness of U.S. MNCs in the global economy while enhancing the welfare …