Tax Law Commons^™

Carrying On The Tradition: Justice Rothstein's Contribution To Canadian Tax Law, William Neil Brooks, Kim Brooks

Articles, Book Chapters, & Popular Press

In this article, we review a selection of Justice Rothstein’s tax judgments with the object of making two observations about his contribution to Canadian tax law. First, Justice Rothstein, who was appointed to the Supreme Court two years after Justice Iacobucci retired, and in many ways stepped into his shoes as the Court’s tax judge, continued Justice Iacobucci’s formalist tradition. We provide evidence of Justice Rothstein’s formalist approach by examining one case he rendered while serving on the Federal Court Trial Division, Neuman; and two cases that were decided when he sat on the Federal Court of Appeal, Singleton and …

The High Cost Of Transferring The Dream, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper is part of a larger project where I use the facts in tax decisions to reveal something about who we are. It looks through a small window into the lives of the people who find themselves caught between our collective and their individual expenditure aspirations. More specifically, it explores the circumstances in which individuals find that their outstanding tax debts pose a threat to their ability to maintain ownership of their home. In this paper I use the facts of tax cases for two ends. First, I am interested in disrupting legal knowledge hierarchies. We choose cases to …

Implementation Of Arbitration Decisions In Domestic Law, J. Scott Wilkie

Articles & Book Chapters

Arbitration, even if it seems simply providing for the possibility of arbitration, is increasingly attracting attention as a possible means to discipline the resolution of otherwise potentially intractable international tax controversies concerning the allocation of taxing rights under tax treaties.While perceived, though not without reservation, to be a potential welcome addition to a typical mutual agreement procedure (MAP) patterned on article 25 (“the MAP article”) of the OECD Model Tax Convention on Income and Capital(“the OECD Model”) in the form of article 25(5), other provisions of article 25, notably its “interpretive” and “application,”and “legislative”,aspects and contemplated recourse to a “joint …

Back To 1913?: The Ryan Blueprint And Its Problems, Reuven S. Avi-Yonah

Articles

From the Revolutionary War to the late 19th century, the federal government was financed primarily through regressive tariffs on imported goods. The exception was the income tax enacted during the national emergency of the Civil War, which was allowed to expire in 1872. The rise of an industrial economy in the post- Civil War era led to significant increases in inequality, which the tariffs exacerbated by falling primarily on the working class. ‘‘Robber barons’’ like J.P. Morgan, Andrew Carnegie, and John D. Rockefeller did not consume most of their income, and their intangible wealth avoided state-level personal property taxes as …

Full Circle? The Single Tax Principle, Beps, And The New Us Model, Reuven S. Avi-Yonah

Articles

This paper will argue that while there is some innovation in BEPS, it is in fact more of a continuation that a sharp break with the past. Like Alexis de Tocqueville’s French Revolution, BEPS represents both continuity and change. In particular, the single tax principle has formed the theoretical basis of much of the international tax regime from the beginning. And it is in fact this continuity rather than any sharp change that gives the final BEPS package its promise to, as Secretary General Gurria also promised, “put an end to double non-taxation.”

Evaluating Beps: A Reconsideration Of The Benefits Principle And Proposal For Un Oversight, Reuven Avi-Yonah, Haiyan Xu

Articles

The Financial Crisis of 2008 and Great Recession that followed have exacerbated income inequality within and between countries. In the aftermath of the economic turbulence, politicians have turned their attention to the twin problems of individual tax evasion and corporate tax avoidance. U.S. legislators enacted the Foreign Account Tax Compliance Act (FACTA), leading to the United States signing a series of Intergovernmental Agreements (IGAs) for the exchange of tax information. The Organization for Economic Co-operation and Development (OECD) developed the Multilateral Agreement for Administrative Assistance in Tax Matters (MAATM) and initiated the Base Erosion and Profit Shifting (BEPS) project to …

A Bipartisan Tax Reform?, Reuven S. Avi-Yonah

Articles

A Bipartisan Tax Reform?By Reuven S. Avi-YonahIf one listens to what Democratic and Republicancandidates for president are saying on the cam-paign trail, it would appear that the chances for taxreform in 2017 and beyond are minimal. A biparti-san approach is essential for tax reform to passbecause even if there are majorities from the presi-dent’s party in both houses, major tax reform wouldnot likely get through the Senate without 60 votes.But the parties seem very far apart on tax reform.Democrats are focused on using the tax system toreduce inequality and are determined to raise thetax rates at the top of the …

Why Tax Wealth Transfers?: A Philosophical Analysis, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the current …

Dear I.R.S., It Is Time To Enforce The Campaigning Prohibition. Even Against Churches, Samuel Brunson

Faculty Publications & Other Works

In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the IRS was to revoke its exemption.

While simple in theory, in practice, the IRS rarely penalizes churches that violate the campaigning prohibition and virtually never revokes a church's tax exemption. And, because no taxpayer has standing to challenge the IRS's inaction, the IRS has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.

This …

Taxing Utopia, Samuel Brunson

Faculty Publications & Other Works

Nineteenth-century American religious movements challenged many aspects of American society. Although their challenges to mainstream America's vision of sex and marriage remain the best-known aspects of many of these groups, their challenges to traditional American economics are just as important. Eschewing individual ownership of property, many of these new Christian movements followed the New Testament model of a body of believers that held all property in common.

In the early twentieth century, these religious communal groups had to contend with something new: an income tax. Communalism did not fit into the individualistic economic system envisioned b-y the drafters of the …

Property Or Currency? The Tax Dilemma Behind Bitcoin, Scott A. Wiseman

Utah Law Review

At Bitcoin’s peak in November 2013, there were 93,000 global transactions made in a single day. These users purchased everyday items such as personal services, food, and real estate. This alone suggests that Bitcoin is not primarily used as a long-term investment tool, but rather is used as a currency and a vehicle for global transactions. Congress and the IRS should regulate it accordingly. Representative Stockman’s Virtual Currency Reform Act offered an attempt to negate the IRS decision and officially classify Bitcoin and other virtual currencies as currency instead of property. A tax reclassification would alleviate typical users’ many inconveniences …

Revisiting Miller Brothers, Bellas Hess, And Quill, Richard Pomp

American University Law Review

No abstract provided.

The Legal Consequences Of Noncompliance With Federal Tax Laws, Allen Madison

Faculty Publications

This Article addresses the legal consequences a taxpayer should consider when deciding whether to comply with the basic requirements of the federal income tax laws. A taxpayer considering noncompliance should consider the government's authority to assert criminal liability, impose civil tax penalties, and forcibly collect any unpaid tax. Although there are numerous criminal tax offenses, the potential offenses that may affect a taxpayer's decision whether to comply are the failure to file and failure to pay misdemeanors, tax perjury felony, failure to pay addition to tax, and civil fraud penalty. The remaining penalties (over 100 of them) target various types …

Marital Sharing Of Transfer Tax Exemptions, Kerry A. Ryan

All Faculty Scholarship

This Article analyzes portability and its antecedents in order to distill a positive account of marital sharing oftransfer tax exemption amounts. Prior to 2010, the estate and gift tax exemption equivalent was a nontransferable, separate tax attribute of each spouse. A spouse could only access his or her spouse’s effective exemption by shifting property into the other spouse’s tax base. With the enactment of portability, Congress decoupled tax-free availability of a spouse’s unified credit from the necessity of a prior intra-spousal transfer. All that is required is an election by the decedent spouse, via the executor, to share the decedent’s …

Cooperating Individual Or Entity: Law Enforcement's Friend In A Time Of Escalating Deficits And Tight Budgets, Albert F. Tellechea

Florida A & M University Law Review

No abstract provided.

Follow The Money: Essays On International Taxation – Introduction, Michael J. Graetz

Faculty Scholarship

Publicity about tax avoidance techniques of multinational corporations and wealthy individuals has moved discussion of international income taxation from the backrooms of law and accounting firms to the front pages of news organizations around the world. In the words of a top Australian tax official, international tax law has now become a topic of barbeque conversations. Public anger has, in turn, brought previously arcane issues of international taxation onto the agenda of heads of government around the world.

Despite all the attention, however, issues of international income taxation are often not well understood. This Introduction outlines a collection of essays, …

Capital Assets: A Guide For The Novice -- With Tips For The Experienced, Erik M. Jensen

Faculty Publications

This article discusses what is usually thought of as a routine issue, but which many people, including at least some tax professionals, get wrong: What is a capital asset for federal income tax purposes? For one thing, the term covers lots of property that almost no one thinks of as a capital asset, like your underwear. On the other hand, despite what many think, the machinery you use in your business and the land on which your factory sits aren’t capital assets. The article considers these characterization issues, and, most important, discusses what difference it can make whether an item …

The Federal Government's Power To Restrict State Taxation, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay evaluates the limits on the U.S. federal government’s powers to restrict the taxing powers of state governments. The essay revisits earlier debates on this question, to consider the implications of the Supreme Court’s decision in National Federation of Independent Business v. Sebelius and also academic research on the problem of tax cannibalization.

A Hitchhiker’S Guide To The Oecd’S International Vat/Gst Guidelines, Walter Hellerstein

Scholarly Works

The OECD’s International VAT/GST Guidelines, which were released in their consolidated form at the OECD’s Global Forum on VAT in Paris in late 2015, are the culmination of nearly two decades of efforts to provide internationally accepted standards for consumption taxation of cross-border trade, particularly trade in services and intangibles. This article provides a roadmap to the Guidelines, especially for readers who may be unfamiliar with consumption tax principles, in general, or VATs in particular. Part II of the article provides the background to the Guidelines, describing the basic features of a VAT, the problems with which the Guidelines are …

New Research On The Stubborn Persistence Of Tax Expenditures, Conor Clarke

Scholarship@WashULaw

In this essay I examine new research on tax expenditures. By utilizing survey experiments, several new studies have explored when and why the public prefers spending programs organized as tax credits rather than direct expenditures, even when the substance and cost of the policies are the same. I argue that this 'framing effects' research can help explain why tax expenditures have continued to grow faster than government spending as a whole, and why tax expenditure budgets have failed to stop this growth.

What Are Tax Havens And Why Are They Bad?, Conor Clarke

Scholarship@WashULaw

This essay reviews Gabriel Zucman's The Hidden Wealth of Nations: The Scourge of Tax Havens. Zucman's important new book brings clarity to a confusing subject -- but occasionally does so at the expense of nuance. My review has three goals. First, I summarize and appraise Zucman's central findings, and re-estimate his revenue-loss totals for the United States using tax-rate assumptions that I believe are more realistic. Second, I position Zucman's findings against the backdrop of the wider literatures on tax havens and inequality, and attempt to answer the two questions in this essay's title. Third, I comment on Zucman's call …

Fragmented Oversight Of Nonprofits In The United States: Does It Work? Can It Work?, Lloyd Hitoshi Mayer

Journal Articles

Previously Brendan Wilson and I concluded that oversight of nonprofit governance would be most effective if it remained the responsibility of the states, although it would benefit from both a federal funding mechanism and enhanced coordination with the Internal Revenue Service.' More recently I concluded that oversight of federal tax exemption would be better served if Congress shifted the locus of that oversight to a national, self-regulatory organization working in close cooperation with the IRS given the perennial financial and other limitations faced by the IRS.2 What neither of these earlier articles addressed, however, was whether the current split of …

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 …

Reconsidering The Tax Treaty, Steven A. Dean, Rebecca M. Kysar

Faculty Scholarship

For nearly one hundred years, the international tax regime steadfastly pursued a single nemesis, double taxation. States armed themselves against this common enemy with their weapon of choice, the double tax treaty. Nearly uniform in language and approach, the treaties proliferated to more than three thousand in number,¹ resulting in a secure arrangement between and among states and taxpayers.

Yet in recent years, states have had to expand the war to multiple fronts in the face of globalization, technological changes, evolving taxpayer abuses, and shifts in both domestic and international political pressures. For instance, a growing recognition that the …

Transfer Pricing Challenges In The Cloud, Orly Mazur

Faculty Journal Articles and Book Chapters

Cloud computing - the provision of information technology resources in a virtual environment - has fundamentally changed how companies operate. Companies have quickly adapted by moving their businesses to the cloud, but international tax standards have failed to follow suit. As a result, taxpayers and tax administrations confront significant tax challenges in applying outdated tax principles to this new environment. One particular area that raises perplexing tax issues is the transfer pricing rules. The transfer pricing rules set forth the intercompany price a cloud service provider must charge an affiliate using its cloud services, which ultimately affects in which jurisdiction …

We'll Always Be Bosom Buddies, Arthur S. Leonard

Other Publications

No abstract provided.

No State Left Behind: An Analysis Of The Post-Egtrra Death Tax Landscape And An Argument For Kentucky To Repeal State Death Taxes, Mary Ellen Wimberly

Kentucky Law Journal

No abstract provided.

Bitcoin Transactions: A Bit Of Financial Privacy, Sumit Agarwal

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Taxing Remote Sales In The Digital Age: A Global Perspective, Walter Hellerstein

Scholarly Works

This Article addresses three fundamental questions raised by the taxation of remote sales in the digital age from a global perspective, but focuses on the implications, if any, of the answers to these questions in the global context for the U.S. subnational retail sales tax. First, should remote sales be taxed under a consumption tax? Second, if the answer to the first question is “yes,” where should such sales be taxed? Third, how can remote sales be taxed effectively under a consumption tax in the digital age?4

Toward A Reality-Based Estate Tax, Wendy C. Gerzog

All Faculty Scholarship

Currently, the estate tax does not accurately value the property and transactions that it is meant to cover. Additionally, the marital and charitable deductions do not reflect actual associated transfers, instead skewing their benefits away from their purported beneficiaries. This Article proposes reforming the estate tax by eliminating these sources of unreality and distortion, and to make the current estate tax a reality-based tax. Through six specific proposals, the Article identifies solutions to the problems associated with testamentary transfers, puts forth alternative methods of valuation to prevent gaming of transfer taxes, and offers significant modifications to two deduction provisions.