Tax Law Commons^™

The Rescission Doctrine: Everything Old Is New Again, Allen Sparkman

American University Business Law Review

No abstract provided.

Taxes, The Problem And Solution: A Model For Vanishing Deductions And Exclusions For Residence-Based Tax Preferences, Phyllis C. Taite

NYLS Law Review

No abstract provided.

Belk V. Commissioner: Land Substitutions In Conservation Easements, Morgan Davis

Loyola of Los Angeles Law Review

No abstract provided.

Net Operating Losses And Mistakes In Closed Tax Years, James R. Gadwood

NYLS Law Review

No abstract provided.

Change And Continuity In Fringe Benefit Taxation: Seeking Sense And Sensibility, Richard L. Kaplan, Dawson J. Price

NYLS Law Review

No abstract provided.

Who Invented The Single Tax Principle?: An Essay On The History Of U.S. Treaty Policy, Reuven S. Avi-Yonah

NYLS Law Review

No abstract provided.

Reporting Loss Transactions: Too Much Of A Good Thing, Megan L. Brackney

NYLS Law Review

No abstract provided.

The Need For Tax Reform: Schedule K-1 Document Matching Program And Effective Revenue Collection, Valeriya Avdeev

NYLS Law Review

No abstract provided.

Speak Up: Issue Advocacy In Increasingly Politicized Times, Sally Wagenmaker

The Journal of Business, Entrepreneurship & the Law

This article first provides a brief primer on current constraints affecting Section 501(c)(3) and 501(c)(4) organizations' communications within the context of what has become known as “issue advocacy.” It then sets forth the problem of increasing politicization of nonprofits' issue advocacy activities. The article next evaluates related constitutional tensions for politically tinged issue advocacy, through the lens of the Supreme Court's free speech decisions. It concludes by addressing how the IRS's different content-based standards for issue advocacy are susceptible to abuse, are otherwise constitutionally suspect, and therefore warrant reform.

Income Or Liability: How Casinos' Classification Of Outstanding Chips Determine Taxability, John Bulloch

UNLV Gaming Law Journal

No abstract provided.

Officers Under The Appointments Clause, John Plecnik

Law Faculty Articles and Essays

Much ink has been spilled, and many keyboards worn, debating the definition of "Officers of the United States" under the Appointments Clause of Article II, Section 2, Clause 2 of the Constitution. The distinction between Officers and employees is constitutionally and practically significant, because the former must be appointed by the President, with or without the advice and consent of the Senate, Courts of Law, or Heads of Departments. In contrast, employees may be hired by anyone in any manner.

Appointments Clause controversies are triggered when a government official who was hired as an employee is accused of unconstitutionally wielding …

Even Adr Must Pay Its Dues: An Analysis Of The Evolution Of The Internal Revenue Service's Adr Programs And Where They Still Need To Grow, Stephen Folan

Pepperdine Dispute Resolution Law Journal

The article offers information on the evolution, development and effectiveness of the alternative dispute resolution (ADR) programs in the Internal Revenue Service (IRS) appeals system. It analyzes the history of the IRS's post-appeal mediation and arbitration systems and advocates adoption of its contemporary commercial arbitration principles to increase the ADR program's desirability for both the taxpayers and the IRS. It proposes cost-effective measures for dispute resolution processes.

Loving And Legitimacy: Irs Regulation Of Tax Return Preparation, Steve R. Johnson

Scholarly Publications

No abstract provided.

Access To Tax Injustice, Francine J. Lipman

Pepperdine Law Review

Every morning, Monday through Friday, school children across the United States raise their voices in unison and pledge allegiance to America, with liberty and justice for all. America, in turn, pledges to these children and the world that it is a nation of liberty, justice, and laws. Laws drafted by representatives intended to follow through on America’s promise of liberty and justice for all. Yet for more than 16 million of these children and 30 million adults living in poverty in 2011, America does not deliver on its promise of justice. In a recent global study, America ranked 27th out …

How To Accomplish A Successful Tax-Free Pension Plan Rollover, Steven T. Graham

Pepperdine Law Review

Advising a client how to accomplish a tax-free rollover from one pension plan to another has been an area of confusion for the general practitioner. In order to end this confusion the author examines recent statutory amendments, Internal Revenue Service rulings and the Employee Retirement Income Security Act. The author then outlines, in conjunction with the recent changes in the law, potential pension plan rollover scenarios that can aid the client. After a thorough discussion of the available rollovers and the benefits and drawbacks of each, the author concludes with a chart designed to provide quick identification of the most …

Horse Syndication: A Sure Footed Winner In The Investment Sweepstakes, Thomas R. Catanese

Pepperdine Law Review

Recent changes in the scheme of federal taxation coupled with increasing interest in the equine industry has propelled that industry into the forefront of tax sheltered investments. In this article the author takes an in-depth look at the federal securities and tax law aspects of a typical equine syndication as a tax sheltered investment.

Justice For All: Reimagining The Internal Revenue Service, David J. Herzig

Law Faculty Publications

The ability of the Internal Revenue Service to both collect the tax and enforce the initial determination of tax liability in a neutral and fair manner has been compromised by a February 2011 pronouncement issued by the Department of Justice stating that the President and the Department of Justice believe that section 3 of the Defense of Marriage Act is unconstitutional and that the Department of Justice will no longer defend the statute in courts. The pronouncement results in a disparate treatment of similar taxpayers based solely on the forum of litigation. Through this lens, I examine whether it is …

Taxation Without Representation: The Illegal Irs Rule To Expand Tax Credits Under The Ppaca, Jonathan H. Adler, Michael F. Cannon

Faculty Publications

The Patient Protection and Affordable Care Act (PPACA) provides tax credits and subsidies for the purchase of qualifying health insurance plans on state-run insurance exchanges. Contrary to expectations, many states are refusing or otherwise failing to create such exchanges. An Internal Revenue Service (IRS) rule purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own. This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. The IRS rule is …

Navigating Tefra Partnership Audits In Multi-Tiered Entity Structures, Mary A. Mcnulty, Robert D. Probasco, Lee S. Meyercord

Faculty Scholarship

The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) established a unified procedure for determining the tax treatment of partnership items at the partnership level rather than the partner level. Although these rules addressed a serious and real administrative problem in the assessment of partnership level deficiencies, they also created a complex process with many new problems and potential traps. One particularly unique set of challenges arises in the context of multi-tiered entities.

Multi-tiered entities are partnerships that have a partnership or other pass-through entity as a partner. The pass-through partner is commonly referred to as a “tier,” and …

The Case For The Retention Of The State Death Tax Credit In The Federal Transfer Tax Scheme: "Just Say No" To A Deduction, John M. Janiga, Louis S. Harrison

Pepperdine Law Review

No abstract provided.

How Long Can This Go On? The Controversy Over The Application Of The Statute Of Limitations To S Corporations And Their Shareholders, J. Marcus Sommers

Pepperdine Law Review

No abstract provided.

Tax Exceptionalism: Wanted Dead Or Alive, Gene Magidenko

University of Michigan Journal of Law Reform Caveat

Tax law has just not been the same since January 2011. Did Congress pass earthshaking legislation affecting the Internal Revenue Code? Did the IRS dramatically change regulations? If only it were that exciting. Instead, eight jurists sitting at One First Street in our nation’s capital transformed tax law in a less bloody, but no less profound, way. The thought must have gone through many a tax mind – is tax exceptionalism dead?

The Forgotten Taxation Landmine: Application Of The Accumulated Earnings Tax To Irc Sec. 831(B) Captive Insurance Companies, Beckett G. Cantley

Richmond Journal of Global Law & Business

No abstract provided.

The Fight Over "Fighting Regs" And Judicial Deference In Tax Litigation, Leandra Lederman

Articles by Maurer Faculty

The question of how much deference courts should accord agency interpretations of statutes is a high-profile and important issue that affects both rulemaking and case outcomes. What level of deference should courts accord an agency regulation or other rule that an agency has issued opportunistically, during the course of related litigation? This important question has arisen in numerous cases, including the 2011 U.S. Supreme Court decision in Mayo Foundation for Medical Education and Research v. United States, a case involving a Treasury regulation.

To answer the question, the Article analyzes the law on judicial deference to tax authorities generally, as …

Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi

University of Michigan Journal of Law Reform

The Internal Revenue Service occasionally creates rules, notices, or regulations that allow taxpayers to pay less than they would under a strict reading of the law. Sometimes, however, these IRS actions are directly contrary to federal law and have significant economic impact. Challenging favorable IRS actions through litigation will likely be unsuccessful because no plaintiff can satisfy the requirements for standing. To address this situation, this Note proposes a statutory reform to provide competitors with standing to challenge favorable IRS actions in court.

Much Uncertainty About Uncertain Tax Positions, Robert D. Probasco

Faculty Scholarship

The Internal Revenue Service (IRS) announced in January 2010 a new initiative to require certain businesses to report “uncertain tax positions” on a new schedule filed with their annual tax returns. Draft schedules and instructions issued in April 2010 clarified some of the mechanical aspects of the new requirement but left many open issues and questions. The IRS proposal built on requirements by the Financial Accounting Standards Board (FASB) in FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (“FIN 48”). The standard requires companies, in their financial statements, to reserve some of the benefits from any position taken …

Topping V. Commissioner: An Example Of How An Equestrian Taxpayer Can Utilize "Single Activity" To Preclude The Irs "Hobby Loss" Challenge, Anna I. Garcia

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Solving The Problem Of Tax-Treaty Shopping Through The Use Of Limitation On Benefits Provisions, Anna A. Kornikova

Richmond Journal of Global Law & Business

No abstract provided.

Optimal Tax Compliance And Penalties When The Law Is Uncertain, Kyle D. Logue

Articles

This article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the substance of the tax law is uncertain - that is, when the precise application of the Internal Revenue Code to a particular situation is not clear. In such situations, a number of interesting questions arise. This article will consider two of them. First, as a normative matter, how certain should taxpayers be before they rely on a particular interpretation of a substantively uncertain tax rule? If a particular position is not clearly prohibited but neither is it clearly allowed, what …

Professor Janet Spragens: In Memory Of A Friend, In Celebration Of An Idea, Nancy S. Abramowitz

Scholarly Articles in Law Reviews & Journals

This article is a tribute to the career and contributions of Professor Janet Spragens, who created the Federal Tax Clinic at the American University, Washington College of Law (WCL). During testimony before the historic Internal Revenue Service Restructuring Commission, Prof. Spragens advised the Commission to create better education of the public and greater availability of free advocacy for low-income taxpayers through federal funding of more clinics. In its landmark legislation of 1998, Congress responded to this testimony with the enactment of 26 U.S.C. §7526, which authorized a program to fund academic and pro bono clinics working to educate non-native English …