Tax Law Commons^™

Wealth Taxes Under The Constitution: An Originalist Analysis, David M. Schizer, Steven G. Calabresi

Faculty Scholarship

A federal wealth tax is high on the wish list of progressives, but is it constitutional? This Article shows that under the original public meaning of the Constitution, a wealth tax is a “direct tax” that must be apportioned. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states both have three percent of the population, each must provide three percent of the revenue. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share.

Article …

Defending U.S. Citizenship-Based Taxation In Theory And In Practice: An Essay On Fiscal Citizenship In A Fatca World, Edward A. Zelinsky

Cardozo Law Review

For some Americans, a surprising aspect of the saga of Meghan Markle, also known as the Duchess of Sussex, was learning that, as a U.S. citizen living in the United Kingdom, the Duchess was obligated to pay U.S. income taxes on her worldwide income.[1] President Donald Trump has echoed concerns raised in this controversy about the United States’ worldwide income taxation of its citizens living abroad. In particular, during his 2024 presidential campaign, President Trump called for “ending the double taxation of overseas Americans.”[2] I found myself drawn into this debate about the United States’ citizenship-based taxation by virtue of …

Valuation Procedure For Condemnation: A Fifty State Survey, David Griffiths

BYU Law Review

The Fifth Amendment requires statutorily authorized condemnors to provide just compensation to landowners for all takings. The procedural method used by states to determine just compensation varies widely among states and is often separate from the more standard procedures existing in traditional civil litigation. Regardless of their method, all fifty states and the District of Columbia each have their own unique procedure for determining just compensation. This Note distinctly classifies the procedural schemes currently used by states to initially value just compensation of condemned property into three general categories: (1) schemes that rely on commissioners to determine just compensation, (2) …

Developing A Novel Conceptual Tax Regulatory Framework For Crypto Tokens, Tamir Shanan, Doron Narotzki, Lior Zaks

Akron Law Review

This article challenges the informal and uncoordinated attempts by governments worldwide to hinder technological innovations that could potentially disrupt established monetary systems and undermine the significance of banks, stock exchanges, and financial institutions. The authors argue that the outcome, which effectively sacrifices governments' ability to tax crypto capital appreciation, impedes the widespread adoption of decentralized tokens and is more detrimental than beneficial. Instead of applying outdated tax rules developed a century ago, the article proposes the development of a new regulatory tax framework that takes into account the unique characteristics of decentralized virtual tokens. These characteristics include their pseudo-anonymity, tradability, …

Tax Arbitration And The Rule Of Law: A Challenge For The Coordination Of International Taxation, Gianluigi Bizioli, Frederico Bertocchi

Akron Law Review

Tax arbitration mechanisms, which are provided both at the international and EU level, play a significant role in solving international tax disputes. However, such mechanisms do not seem to be fully compliant with the concept of Rule of Law that seems to arise from International and EU Laws. In fact, tax arbitration mechanisms appear to lack —mainly— certain due process guarantees that allow such procedures to comply with the equality principle.

More specifically, tax arbitration involves almost only the States, which are the party to it, allowing them to exercise relevant powers and influence —for instance— over the arbitration body …

The Foundations Of International Taxation: Knocked From Post To Pillars, Yariv Brauner

Akron Law Review

After a century of convergence and consolidation, the international tax regime is at a crossroads. A recent program promoted by the OECD, known as the two pillars program, departs in many ways from long standing norms of the regime. But the OECD and many states insist that the foundations of the regime have not changed, portraying the two pillars as a negotiated, pragmatic compromise that responds mainly to the challenges that the digital economy presented to the old rules. This article rejects this portrayal, arguing that the program is far from being a balanced or a truly negotiated compromise between …

Reforming The Foreign Tax Credit, Subpart F, And Gilti In Light Of Pillar Two, Andrew Duxbury, Jonathan D. Grossberg, Genevieve Tokic

Akron Law Review

The foreign tax credit has been a cornerstone of the United States international tax system since as early as 1919. However, there have been a number of recent developments in the international tax landscape that warrant a significant revision to the foreign tax credit rules as they apply to controlled foreign corporations (“CFCs”). In particular, the current global tax deal known as the OECD/G20 Inclusive Framework, Pillars One and Two, may cause the United States to lose significant tax revenue if changes are not made to international tax rules, including the foreign tax credit. Thus far, the United States has …

Redesigning Post-Incarceration Employment Tax Credits: Making Work Opportunity Credits Work For Former Felons, Stephanie Hunter Mcmahon

University of Michigan Journal of Law Reform

Former felons have a significantly higher unemployment rate than other groups of American workers. This unemployment increases recidivism as well as broader societal problems. Consequently, Congress enacted the Work Opportunity Tax Credit to encourage employers to hire former felons (and other groups of targeted workers) by offsetting their wages. For the credit to increase employment, employers must know whether potential workers would likely qualify for the credit before hiring decisions are made. However, the growing Ban the Box Movement seeks to defer or eliminate conviction history questions in hiring. After examining the credit’s stated purpose, its operating mechanism, and some …

National Report Of United States (2024), Christine Speidel

Research Reports & White Papers

The Observatory on the Protection of Taxpayers’ Rights (OPTR) identifies principles, minimum standards and best practices for the effective protection of taxpayers’ rights. It allows for the permanent monitoring of global compliance with such minimum standards and their amendment and development in different regions of the world.

Assessing Willingness To Pay For Parking Fees Among Residents: Evidence From Malang City, Damas Dwi Anggoro, Aleyda Farihatus Shofwah

BISNIS & BIROKRASI: Jurnal Ilmu Administrasi dan Organisasi

This study aims to investigate the willingness to pay (WTP) for user charges imposed by the local government using an extended Theory of Planned Behavior (TPB). Viewing the local government as a service provider, the construct of perceived value is incorporated to determine behavioral intention toward user charges, marking a novel contribution of this study to the literature. Specifically, this study analyzes (1) the effect of each TPB construct—attitude toward the behavior, subjective norms, and perceived behavioral control (PBC)—on WTP, (2) the effect of perceived value on WTP, and (3) the indirect effect of perceived value on WTP mediated by …

Assessing The Tax Communications Of E-Commerce Vendors, Part Ii, David Gamage

Faculty Publications

This article presents the second part of a research project on the tax communications of e-commerce vendors. It details the results of a behavioral experiment designed to test how different representations of sales and use tax obligations influence consumer purchasing decisions. The study finds that potentially misleading indicators, such as "No Tax" or "$0 of Tax," significantly increase the likelihood that consumers will purchase from vendors who do not collect sales tax. Compared to vendors who provide accurate information about potential use tax liabilities, consumers were substantially more likely to choose a vendor displaying a "No Tax" message. These findings …

Deglobalization, Tax Competition, And The Potential Revival Of The Welfare State, Reuven S. Avi-Yonah, Doron Narotzki

Articles

Before 1980 the world was relatively closed. There were significant barriers to cross-border trade and investment in the form of tariffs and exchange controls. Martin Feldstein, former President Reagan’s chief economic adviser, coauthored an article in 1979 that showed that investment in the U.S. economy was about equal to U.S. savings, so the United States could manage without any foreign direct or portfolio investment.

Real Property Taxes In Maine And The Impoverished: An Expose?, J. Michael Conley Iii

Maine Law Review

As the clamor for war against poverty increases throughout our society, there are few social and legal spheres that remain unscathed. Congress and the state legislatures have finally begun to show compassion in enacting new laws concerning virtually every social field in an attempt to alleviate the atrocious conditions under which this nation's poor exist. Moreover, the judicial system seems to have gained more awareness of the legal standing of the poor man and has begun to vindicate his once-dormant constitutional and statutory rights. One poverty target that has been hit by both the lawmakers and the courts concerns the …

Complete Liquidation Of The Corporate Subsidiary: The Questions, Some Answers And Some Observations, Frank M. Burke Jr.

Maine Law Review

Various sections of the Internal Revenue Code of 1954 have been enacted to influence the economy in one manner or another. During the period from 1930 to 1935, elimination of holding companies was an important topic. Many felt that elimination of holding company structures would at least partially relieve the existing economic depression. At that time the complete liquidation of a corporate subsidiary was treated as a taxable transaction. President Roosevelt urged Congress to create a favorable tax atmosphere for such liquidations to encourage "simplification of our corporate structures through the elimination of unnecessary holding companies in all lines of …

Bridging The Justice Gap: Low-Income Taxpayer Clinic At North Mississippi Rural Legal Services, Emma-Kathryn Bond

Honors Theses

Over the course of two years, I spent more than 130 hours completing on-the- ground volunteer work with the Low-Income Taxpayer Clinic (LITC), a clinic within North Mississippi Rural Legal Services that provides free legal assistance to individuals navigating disputes with the IRS. While the Sixth Amendment guarantees legal representation in criminal cases, no such guarantee exists for civil matters such as tax disputes, housing instability, or loss of public benefits. Clinics like LITC fill a crucial gap by offering support in areas that are often overlooked, such as tax law, where clients risk audits, wage garnishments, and court proceedings …

Subchapter S And Selected Problems In Close Corporation Planning, Martin A. Rogoff

Maine Law Review

The basic scheme of Subchapter S has already been thoroughly explained and discussed, and there is an extensive literature dealing with particular Subchapter S problems. It is the purpose of this article to focus on recent litigation in three especially troublesome areas, where the actual requirements or effects of a Subchapter S election necessitate foresight and careful planning to enable the shareholders of an electing corporation to obtain the maximum tax advantage. These areas are corporate distributions, the net operating loss passthrough, and the single class of stock rule.

Winter Is Coming: What States Should Do Now, Part I, David Gamage, Darien Shanske

Faculty Publications

This Article addresses the unprecedented fiscal challenges facing state governments as federal policy shifts threaten to create a perfect storm of revenue losses and increased service demands. As states confront potential federal cuts to essential services like Medicaid, reduced tax enforcement capacity, and possible tariff-driven economic disruption, we argue that piecemeal responses will prove insufficient.

We propose a seven-step framework for state fiscal resilience: (1) pausing automatic conformity to federal tax changes to preserve revenue bases; (2) enhancing state tax enforcement capacity by hiring federal personnel as the IRS sheds expertise; (3) maintaining and expanding taxpayer service innovations like direct …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Tax Incentives, The Tcja, And The Rise Of The Philanthropist Class, University Of Washington School Of Law

Rule of Law Initiative

Executive Summary:

The first Trump Administration’s 2017 Tax Cuts and Jobs Act (TCJA) fundamentally altered America's charitable giving landscape through a two-step approach: first by reducing tax incentives for middle-class donors, then by empowering ultra-wealthy philanthropists. These changes have shifted control of charitable giving from everyday Americans to a small “Philanthropist Class,” referring to ultra-high-net-worth individuals who contribute vast sums, often through foundations or donor-advised funds (DAFs). This shift in charitable power holds profound implications for democracy, equality, and nonprofit sustainability.

The TCJA nearly doubled the standard deduction while limiting itemized deductions, causing the percentage of middle-class households claiming charitable …