Tax Law Commons^™

Brief Of Tax Law Professors As Amici Curiae In Support Of Petitioner, Edward A. Zelinsky

Amicus Briefs

Amici are professors of tax law at universities across the United States. As scholars and teachers, they have considered the doctrinal roots and practical consequences of judicial limits on state and local taxation. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in the Appendix to this brief.

A Vatcoin Solution To Mtic Fraud: Past Efforts, Present Technology, And The Eu’S 2017 Proposal, Richard Thompson Ainsworth, Musaad Alwohaibi, Mike Cheetham, Camille Tirand

Faculty Scholarship

On October 4, 2017, in an effort to recover some of the VAT lost annually, the European Commission proposed “far-reaching reforms.” The immediate target is a €50 billion slice of an estimated €150 billion overall annual loss. In its proposal the Commission is looking only at Missing Trader Intra-Community (MTIC) fraud in goods.

Goods (alone) are targeted. If we have learned anything about MTIC fraud since January 1, 1993, it is that fraudsters engaged in this activity are exceptionally agile. MTIC frauds migrate and mutate on command. For example, MTIC fraud in cell phones quickly migrated to computer chips in …

Prop Up The Heavenly Chorus? Labor Unions, Tax Policy, And Political Voice Equality, Philip T. Hackney

St. John's Law Review

(Excerpt)

This Article contributes to the tax legal literature by providing an analysis of labor unions and how we tax them. Although labor unions as a whole are a very small part of our economy and tax system, by looking at one narrow section of the tax-exempt sector we can shed light on the rest of the exempt sector. Additionally, although most tax policy scholarship focuses on one of three values—equity in an economic sense, efficiency in an economic sense, and administrability—I focus primarily on the value of equity in a governance sense.

I argue that, at least in the …

Cracking Shells: The Panama Papers & Looking To The European Union's Anti-Money Laundering Directive As A Framework For Implementing A Multilateral Agreement To Combat The Harmful Effects Of Shell Companies, Nicholas Vail

Texas A&M Law Review

In early 2016, the International Consortium of Investigative Journalists released a report detailing thousands of leaked documents demonstrating how a Panamanian law firm had, for years, helped wealthy clients conceal their financial activities through the use of offshore shell companies. The Panama Papers, as the leaked documents came to be known, directed renewed attention at the use of shell companies. Shell companies are used by the world’s wealthy and powerful to lower their taxes, but are also used by tax evaders, criminal organizations, and terrorists. While much of the renewed attention has been directed at offshore tax havens such as …

Beat It: Tax Reform And Tax Treaties, Reuven S. Avi-Yonah

Law & Economics Working Papers

The Tax Cuts and Jobs Act (TCJA) includes several provisions that may be viewed as potential violations of US tax treaties. However, most of those potential violations, such as new IRC section 951A and to a large extent new IRC section 59A, are covered by the Savings Clause (US model article 1(4)). The only remaining question is whether IRC section 59A (the “Base Erosion Anti-Abuse Tax”, or BEAT) violates the non-discrimination provision (article 24), which is exempted from the Savings Clause. The answer is no, because foreign related parties are not comparable to US related parties receiving interest or royalties.

Soda Taxes As A Legal And Social Movement, David A. Dana, Janice Nadler

Northwestern Journal of Law & Social Policy

No abstract provided.

How Terrible Is The New Tax Law? Reflections On Tra17, Reuven S. Avi-Yonah

Law & Economics Working Papers

Overall, TRA17 is not much worse than TRA86 or TRA14. It increases the deficit, but not by an impossible amount; it is distributionally skewed, but less so than is usually assumed; and its details are not terrible (on the international side they are a big improvement over prior law). There is one big problem, the pass through provisions, and we can only hope that as its horrible implications unfold it will be a prime candidate for repeal.

Stategraft, Bernadette Atuahene, Timothy Hodge

All Faculty Scholarship

Although sometimes difficult to detect, governmental power abuses can have detrimental impacts. Property tax assessments provide an effective lens to examine this phenomenon because, given the complexity of calculating property tax assessments, it is difficult for citizens to know when local government has exceeded its legitimate taxing authority and crossed into the realm of illegal extraction. Michigan is an ideal case study because it protects property owners by making assessment-related power abuses more visible through a unique state constitutional provision: property tax assessments cannot exceed 50 percent of a property’s market value. Abuses have persisted nevertheless. Between 2011 and 2015, …

Tax Havens As Producers Of Corporate Law, William J. Moon

Faculty Scholarship

This Review Essay situates Christopher Bruner’s new book, Re-imagining Offshore Finance, within the literature examining the regulation of cross-border finance and highlights its import for thinking about the complicated (and contested) relationship between territorially-configured domestic laws and the increasingly liberal movement of capital. Part I sets out the book’s central thesis. In addition to highlighting Bruner’s novel framework identifying the factors that propel certain small jurisdictions into becoming magnets for cross-border finance, I outline the limits of the framework in accounting for the stability in the overall demand for the commercialization of sovereignty, only one of which is facilitating …

Tax As Part Of A Broken Budget: Good Taxes Are Good Cause Enough, Stephanie Mcmahon

Faculty Articles and Other Publications

The federal budget is a myth. Despite being a myth, Congress uses the budget to limit its choices by linking its revenue-raising and spending powers under a federal debt ceiling. Through its self-imposed limits, Congress puts tremendous pressure on how it calculates its budget, and that calculation generally assumes any tax provisions will raise revenue when the law becomes effective. However, many tax provisions require additional direction to ensure they operate as the budgetary process expects. That task falls to the Treasury Department and the Internal Revenue Service (IRS) as a bureau of the Department. Consequently, limiting the production of …

How Big Is Too Big: Should Certain Higher Educational Endowments' Net Investment Income Be Subject To Tax?, James J. Fishman

Cornell Journal of Law and Public Policy

Section 13701 of the 2017 Tax Reform statute created new Internal Revenue Code § 4968 that imposes a 1.4% excise tax on the net investment income of certain billion-dollar private college and university endowments.

This Article will review and critique the existing endowment excise tax legislation. It also will raise the controversial issue of whether all, or merely the largest, endowments should be subject to any tax whatsoever and will recommend that the revenue from the tax be applied to educational programs. Further, this Article will offer an overview of Congressional and academic criticism of the largest endowments, discuss the …

2017 Annual Survey: Recent Developments In Sports Law, Jordan Lysiak, Katherine Hampel

Marquette Sports Law Review

None

Form I-9 In The Digital Age: Employer Compliance And Enforcement Challenges, Sari Long, Catherine Betts

American University Business Law Review

No abstract provided.

Index: Sports Law In Law Reviews And Journals, Jordan Lysiak

Marquette Sports Law Review

None

Centralized Review Of Tax Regulations, Clinton G. Wallace

Faculty Publications

Centralized oversight of agency policymaking and spending by the President’s Office of Management and Budget is a hallmark of the modern administrative state. But tax regulations have almost never been subject to centralized review. The Trump administration recently proposed to require centralized review of tax regulations, but it is unclear what regulations would be subject to such review or how it would be conducted.

This Article examines the normative desirability of the longstanding approach of exempting tax regulations from centralized review, and the alternative of imposing such review. Scholars and policymakers have provided various incomplete justifications for excepting tax policy …

¿Debemos Exigirle Seguridad Jurídica A Una Cláusula Antielusiva General? Reflexiones Sobre Las Líneas Discursivas Contrarias A La Cag, Fernando Loayza Jordán

Scholarly Articles

Las CAG generan tensiones entre la certidumbre que desean los contribuyentes y la flexibilidad que requiere su naturaleza. Esta tensión se refleja en las líneas discursivas críticas contra la Norma XVI. Hemos resumido estas en tres ideas fuerza: (i) “una CAG vulnera el principio de seguridad jurídica”, (ii) “una CAG solo podría ser aceptable si se enuncia con un lenguaje muy preciso y definido” y (iii) “una CAG interrumpiría la dinámica regular de los negocios y detendría la inversión”. A partir de la experiencia comparada y el análisis de la función de las CAG y la naturaleza del fenómeno de …

Failing To Prepare: The Importance Of Regulating Tax Return Preparers Followingthe Passage Of The Tax Cuts And Jobs Act, Jacob Peeples

American University Business Law Review

No abstract provided.

Holding U.S. Corporations Accountable: The Convergence Of U.S. International Tax Policy And Human Rights, Jacqueline Lainez Flanagan

Journal Articles

International human rights litigation underscores the inverse relationship between corporate power and corporate accountability, with recent Supreme Court decisions demonstrating increased judicial protections of corporate rights and decreased corporate accountability. This article explores these recent decisions through a tax justice framework and argues that the convergence of international human rights law and U.S. international tax policy affords alternate methods to hold corporations accountable for violations of international law norms. The article specifically proposes higher scrutiny of foreign tax credits and an anti-deferral regime targeting the international activity of U.S. corporations that use subsidiaries to shelter income and decrease taxation while …

The Misconstruction Of The Deductions For Business And Personal Casualty Losses, Jeffrey H. Kahn

Scholarly Publications

Losses suffered on an individual's personally used property generally are not deductible. Even after the changes made by the 2017 Tax Cuts and Jobs Act, in two circumstances an exception to this rule applies when "such losses arise from.fire, storm, shipwreck, or other casualty, or from theft." The principal issue that arises is determining the meaning of the term "other casualty." Taking what they deemed to be the common elements in the three explicitly identified casualties, the courts and the Internal Revenue Service determined that an event will qualify as an "other casualty" only if it is "sudden," "unusual," and …

The Impact Of Regulatory Measures Imposed On Initial Coin Offerings In The United States Market Economy, Joseph D. Moran

Catholic University Journal of Law and Technology

With the surge of technological advances across the financial market landscape, companies have implemented new ways of raising money that have sparked controversy among investors, legal practitioners, banks, and government regulators. This comment examines the technology behind Initial Coin Offerings (ICO), and discusses the impact they have had on financial markets in the United States and across the globe. This comment also addresses the legal ramifications for companies issuing ICOs, and delves into the benefits of using blockchain technology as a means for transferring digital currencies and making business transactions. This comment further gives examples of current and potential regulations …

Medical Necessity: A Higher Hurdle For Marginalized Taxpayers?, Julie Furr Youngman, Courtney D. Hauck

Loyola of Los Angeles Law Review

Civil rights protection for transgender people—and in particular access to affordable health care—is currently the subject of intense political scrutiny, with a hostile administration chipping away at legal protections. Among other setbacks, a federal district court enjoined regulatory guidelines that were issued in 2016 to clarify that the federal prohibition on sex discrimination in health insurance applies to discrimination on the basis of gender identity and transgender status, and the promulgating agency itself is now reconsidering the guidelines. Without explicit federal protections against discrimination by health insurers and in the face of uneven state law protections, the ability to deduct …

Tax 2018: Requiem For Ability To Pay, Alice G. Abreu

Loyola of Los Angeles Law Review

Enactment of the TCJA was followed by a mad dash to understand its effects. The speed and process of enactment left no time for serious attempts to analyze whether the TCJA transforms the income tax system in any fundamental way. This Essay is a first step in that analysis. Although some of the most important changes I discuss are set to expire or phase out after 2025, understanding their policy implications is important, not only because they are the law now but also because Congress may extend them, perhaps indefinitely.

The TCJA has changed the way the tax system operationalizes …

Profit-Split Method: Time For Countries To Apply A Standardized Approach, Jeffery M. Kadet, Tommaso Faccio, Sol Picciotto

Articles

Now that the OECD has issued its final guidance on the action 10 profit-split method, individual countries must determine how they might consider and apply the profit-split method.

It’s true that some countries have large and well-staffed transfer pricing audit groups that include economists and other tax professionals knowledgeable in the application of transfer pricing principles and rules. However, those resources are never enough to match the legions of specialists that can be deployed by large multinational groups.

The situation is even worse elsewhere. Most countries not only have significant resource and personnel constraints, but they also simply do not …

The Case For Preempting Salt Cap Workarounds, Hayes R. Holderness

Law Faculty Publications

In late 2017 the Tax Cuts and Jobs Act (P.L. 115-97) was passed into law. Controversy instantly ensued. One major controversy revolves around the capping of the Internal Revenue Code section 164 state and local tax deduction at $10,000 per taxpayer (the SALT cap). Viewed by many blue states as an attack on their citizens, the SALT cap has spurred counterattacks in the form of state legislation designed to provide taxpayers with an avenue to counter the effects of the SALT cap (the SALT cap workarounds). While others have and are considering the effectiveness of the SALT cap workarounds, this …

Charitable Subsidies And Nonprofit Governance: Comparing The Charitable Deduction With The Exemption For Endowment Income, David M. Schizer

Faculty Scholarship

Charitable subsidies are supposed to encourage positive externalities from charity. In principle, the government can pursue this goal by evaluating specific charitable initiatives and deciding how much each should receive. Although the government sometimes makes this sort of fine-grained judgment, this Article focuses on two income tax rules that leave the government essentially no discretion about which charities to fund: the deduction for donations to charity ("the deduction") and the exemption of a charity's investment income ("the exemption"). With each subsidy, federal dollars flow automatically as long as charities satisfy very general criteria.

As a result, these subsidies are especially …

Harmonizing Federal Tax Law And The State Legalization Of Marijuana, Daniel Rowe

Loyola of Los Angeles Law Review

No abstract provided.

How Federal Tax Law Rewards Housing Segregation, Michelle D. Layser

Indiana Law Journal

INTRODUCTION

I. THE SPATIAL DISTRIBUTION OF TAX-BASED HOUSING SUBSIDIES

A.WHY THE SPATIAL DISTRIBUTION OF TAX-BASED HOUSING SUBSIDIES MATTERS

B. THE LOCATION OF TAX-SUBSIDIZED HOUSING IN AMERICA

1. THE SPATIAL DISTRIBUTION OF MORTGAGE INTEREST DEDUCTION BENEFITS

2. THE SPATIAL DISTRIBUTION OF LOW-INCOME HOUSING TAX CREDIT PROJECTS

II. VISUALIZING THE SPATIAL DISTRIBUTION OF TAX-BASED HOUSING SUBSIDIES

A. THE BIG PICTURE: MAPPING TAX-BASED HOUSING SUBSIDIES

B. A CLOSER LOOK: DESCRIBING TAX-SUBSIDIZED NEIGHBORHOODS

1. NEIGHBORHOODS WITH HIGH SHARES OF MORTGAGE INTEREST DEDUCTION BENEFITS AND FEW LIHTC PROPERTIES

2. NEIGHBORHOODS WITH HIGH NUMBERS OF LIHTC PROPERTIES AND LITTLE MORTGAGE INTEREST DEDUCTION BENEFIT

3. NEIGHBORHOODS IN …

Cybersecurity And Tax Reform, Michael Hatfield

Indiana Law Journal

INTRODUCTION

I. THE PAST AND FUTURE OF THE IRS AS A CYBERATTACK TARGET

A. IRS AS A CYBERATTACK TARGET

B. THE FUTURE OF THE IRS AS A CYBERATTACK TARGET1. INFORMATION TECHNOLOGY

2. TAX INFORMATION

3. TYPES OF FUTURE ATTACKS

II. THE IRSWILL FAIL TO IMPLEMENT ADEQUATE CYBERSECURITY

A. VERY POOR HISTORY OF IMPROVING TECHNOLOGY

B. INADEQUATE FUNDING

C. INABILITY TO RECRUIT AND RETAIN EXPERTS

D. TOOMANY USERS

E. CYBERSECURITY IS DIFFICULT

III. BETTER DIGITAL TECHNOLOGY IS NOT THE GOAL

A. SLOWING THE USE OF DIGITAL TECHNOLOGY

B. CYBERSECURITY AND TAX REFORM

1. PAY-AS-YOU-EARN (PAYE)

2. SIMPLIFIED INCOME TAX

3. PURIFIED …

Why Examples? Towards More Behaviorally-Intelligent Regulation, Yariv Brauner

UF Law Faculty Publications

Tax regulation authors habitually infuse regulations with explanatory examples. These examples are viewed favorably by both the government that encourages their drafting and the taxpayers who regularly rely on such examples to assist them in dealing with the notoriously complex tax rules. Despite the ubiquity of these examples, there is no published guidance for their drafting, their use, or their interpretation. The first original contribution of this article is the exposition and classification of the advantages and deficiencies in the current use of examples in tax regulations. This article is the first to question the rationale behind the ubiquitous use …

2018 Erwin N. Griswold Lecture Before The American College Of Tax Counsel: Tax Policy Elegy, Martin J. Mcmahon Jr.

UF Law Faculty Publications

For over four decades there have been unrelenting calls to make the tax code “fair, simple, and efficient.” But despite nine major tax acts between 1969 and 2003, along with many less extensive tax acts, the refrain for a “fair, simple, and efficient” tax code has continued to be heard. This continuing plea is not surprising, because over the decades the tax system has evolved to ask the highest income earners to pay less in taxes, become ever more complex, and eschewed “efficiency” in favor of the allowance of an ever-increasing number of tax preferences. Tax act after tax act …