Tax Law Commons^™

Taxing Residential Solar, Gregg Polsky, Ethan Yale

Scholarly Works

Residential solar systems are becoming commonplace in many regions of the United States. Use of such systems raises issues in tax doctrine and policy that are not well appreciated and have not yet been systematically analyzed. The goals of this article are threefold: (1) to identify the main issues and to organize them into a coherent framework, (2) to analyze the doctrinal and policy ramifications of present law, and (3) to suggest improvements to present law.

The Impact Of The 2017 Tax Act On Certain Personal Injury Plaintiffs, Gregg Polsky

Scholarly Works

The 2017 Tax Act was the most sweeping federal tax legislation in over a generation. While many of its reforms, from dramatically lowering the corporate tax rate to altering the international tax rules, have already received significant attention, little attention has been paid to the 2017 Tax Act’s effects on personal injury plaintiffs. This Article explores these impacts.

The 2017 Tax Act added a new provision that indirectly affects plaintiffs who allege sexual harassment or abuse. The new provision disallows the defendants’ deductions in these cases if the parties enter into a nondisclosure agreement. While targeted at defendants, the provision …

The Rapidly Evolving Universe Of Us State Taxation Of Cross-Border Online Sales After South Dakota V Wayfair, Inc., And Its Implications For Australian Businesses, Walter Hellerstein

Scholarly Works

The US Supreme Court’s 2018 decision in South Dakota v. Wayfair, Inc. dramatically expanded the subnational states’ power to require remote suppliers to collect taxes on in-bound sales to local consumers by repudiating the pre-existing, judicially created constitutional rule limiting the states’ authority to enforce such collection obligations to those suppliers with an in-state physical presence and replacing it with a ‘nexus’ rule based on ‘economic and virtual contacts’. The state legislatures reacted quickly and almost unanimously to the Wayfair decision by adopting rules imposing sales tax collection obligations on remote suppliers whose sales exceeded specified dollar or transaction thresholds. …

Why Study Tax History?, Reuven S. Avi-Yonah

Reviews

Since the beginning of this century, John Tiley organized an annual tax history conference at Cambridge, a tradition that was continued after his death under the leadership of Peter Harris. These are the papers from the ninthCambridge Tax Law History Conference, held in July 2018. In the usual manner, the papers have been selected from an oversupply of proposals for their interest and relevance, and scrutinized and edited to the highest standard for inclusion in this prestigious series. The result is an outstanding book, with many high quality contributions to historical tax research.

Distortion Of Income In A Single-Factor Sales Formula World, Walter Hellerstein

Scholarly Works

In this article, Hellerstein describes the framework governing constitutional challenges to state income tax apportionment formulas in light of the widespread adoption of single-factor sales formulas and speculates as to whether a recent Michigan court decision invalidating the application of such a formula on constitutional grounds might be a harbinger of things to come.

The Interpretive Exercise Under The General Anti-Avoidance Rule, David G. Duff

All Faculty Publications

This chapter examines the interpretive exercise under the Canadian GAAR, contrasting this interpretive exercise with ordinary interpretation under the textual, contextual and purposive (TCP) approach, and considering the way in which the object, spirit, and purpose of the relevant provisions is determined in order to decide whether an avoidance transaction is subject to the GAAR. The first part distinguishes the interpretive exercise under the GAAR from the TCP approach, explaining that ordinary interpretation under the TCP approach is rightly constrained by the text of the applicable provisions in a way that the interpretive exercise under the GAAR is not. The …

General Anti-Avoidance Rules Revisited: Reflections On Tim Edgar’S 'Building A Better Gaar', David G. Duff

All Faculty Publications

In addition to the requirement of a tax benefit or advantage, the application of most modern general anti-avoidance rules turns on two elements: a so-called "subjective element" which considers the purpose for which the transaction or arrangement resulting in the tax benefit or advantage was undertaken or arranged; and an "objective element" which considers the object or purpose of the relevant provisions to determine if the tax benefit resulting from the transaction or arrangement is or is not consistent with this object or purpose.

Although these two elements are present in most modern GAARs, the function of each element within …

What Is Unilateralism In International Taxation?, Wei Cui

All Faculty Publications

The OECD recently emerged as the site of unprecedented, multilateral, and seemingly high-stakes negotiations about the future of international business income taxation. Judging by the political resources deployed in these negotiations, international tax has entered unchartered territory. Professor Ruth Mason offers a timely and balanced portrayal of the OECD process so far. But explanations of this process remain highly contestable. On the one hand, international institutions that address externalities from uncoordinated actions and produce mutual benefits for participating nations can be highly stable. On the other hand, the OECD has struggled, whether in its BEPS (Base Erosion and Profit Shifting) …

Capital, An Elusive Tax Object And Impediment To Sustainable Taxation, Henry Ordower

All Faculty Scholarship

Sustainable taxation requires stability and predictability. Sustainable taxation is a tax or taxes that collect sufficient revenue to support the governmental goods and services the society needs and wants. The taxes must provide for 1) even-handedness -- something akin to horizontal equity, 2) distributional fairness -- a concept emerging from notions of vertical equity, 3) transparency in application so that the populace understands and accepts the tax and the need for it and 4) collection mechanisms that do not favor some societal groups, especially those with resources to secure creative tax advisors, over others who lack the resources. Narrow base …

Information Matters In Tax Enforcement, Leandra Lederman, Joseph C. Dugan

Articles by Maurer Faculty

Most scholars recognize both that the government needs information about taxpayers’ transactions to determine whether their reporting is honest, and that third third-party reporting helps the government obtain that information. Given governments’ reliance on tax collections, it would be risky to think that information or third third-party reporting is not needed by tax agencies. However, a recent article by Professor Wei Cui asserts that “modern governments can practice ‘taxation without information.’” Professor Cui’s argument rests on two claims: (1) “giving governments effective access to taxpayer information through third parties does not explain the success of modern tax administration” because, he …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Formulating The International Tax Debate: Where Does Formulary Apportionment Fit?, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

As the contributions in this volume are being written, the Inclusive Framework nations, a group drawn together by the Organisation for Economic Co-operation and Development (OECD) as part of its Base Erosion and Profit Shifting (BEPS) project, are in the midst of a consultation process intended to revise the international corporate tax profit allocation and nexus rules. At the end of May 2019, the OECD released its Programme of Work to Develop a Consensus Solution to the Tax Challenges Arising from the Digitalisation of the Economy. At the beginning of June 2019, this Programme was endorsed by the G20 …

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace shift and, if …

Giving Credits Where Credits Are (Arguably) Due: A Half Century's Evolution In The Design Of Personal Tax Expenditures, Lawrence Zelenak

Faculty Scholarship

In the late 1960s, when Stanley Surrey introduced the concept of tax expenditures and the federal government began producing tax expenditure budgets, personal tax expenditures in the form of deductions (for nonbusiness interest, charitable donations, state and local taxes, and medical expenses) equaled roughly 1.2% of gross domestic product, and personal tax expenditures in the form of credits were virtually nonexistent. Although Surrey was critical of all tax expenditures, he had particular scorn for tax expenditures in the form of deductions, which he characterized as upside-down subsidies. He explained that converting deduction tax expenditures to credits would make them less …

The Importance Of Qualitative Research Approaches To Gig Economy Taxation, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

As the United States tax system continues to grapple with how to tax workers in the gig economy, it confronts a number of questions about the nature and composition of the sector as well as the tax issues confronted by its participants. Many of these questions have proven difficult to answer due to a lack of adequate information. But the answers are important and will shape how tax and other areas of law (such as employment law, labor law, and antitrust) respond to the gig economy. Thus, the question of how to obtain the data and information necessary to formulate …

Pay Toll With Coins: Looking Back On Fbar Penalties And Prosecutions To Inform The Future Of Cryptocurrency Taxation, Caroline T. Parnass

Georgia Law Review

Cryptocurrencies are gaining a foothold in the global
economy, and the government wants its cut. However, few
people are reporting cryptocurrency transactions on their tax
returns. How will the IRS solve its cryptocurrency
noncompliance problem? Its response so far bears many
similarities to the government’s campaign to increase Reports
of Foreign Bank and Financial Accounts (FBARs). FBAR
noncompliance penalties are notoriously harsh, and the
government has pursued them vigorously. This Note explores
the connections and differences between cryptocurrency
reporting and foreign bank account reporting in an effort to
predict the future regime of cryptocurrency tax compliance.

The Threshold Question: Oklahoma’S Taxing Task After South Dakota V. Wayfair, Jonathan Rogers

Oklahoma Law Review

No abstract provided.

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 …

New Technologies And The Evolution Of Tax Compliance, James Alm, Joyce Beebe, Michael S. Kirsch, Omri Marian, Jay A. Soled

Journal Articles

Improving tax compliance is a common goal of governments worldwide. The United States is no exception. The size of the nation's "tax gap" - or the difference between what taxpayers pay in taxes in a timely manner and what they should pay if they fully complied with the tax laws - is hundreds of billions of dollars annually, significantly depriving the nation of much-needed revenue.

This paper explores the mixed effects of technological advancements on tax compliance - and, thus, its counterpart, tax noncompliance. On the one hand, technological advances have largely eradicated many of the commonplace tax-noncompliance techniques that …

Remutualization, Erik F. Gerding

Publications

Policymakers need to rediscover the organizational form of business entity as a tool of financial regulation. Recent and classic scholarship has produced evidence that financial institutions organized as alternative entity forms – including investment bank partnerships and banks and insurance companies organized as mutual or cooperatives – tend to take less risk, exploit customers/consumer less, or commit less misconduct compared to counterparts organized as investor-owned corporations. This article builds off the work of Hill and Painter on investment banks organized as partnerships, Hansmann on the history and economics of banks and insurance companies organized as mutuals and cooperatives, and other …

Tax Practice Gets A Mary Kay Makeover: The Tale Of Peterson And The Danielson Rule, Joy Sabino Mullane

Faculty Publications

No abstract provided.