Tax Law Commons^™

Fiscal Federalism And The Fall Of Inheritance Taxes In The United States, Safia Sayed

ACTEC Law Journal

Modern scholars of American wealth transfer taxation underappreciate the system’s history—characterized at its incipience by a broad patchwork of state inheritance taxes rather than current law’s federal estate tax. Moreover, this history is not only neglected but incompletely recounted; in the last four decades of the twentieth century, a majority of states in all parts of the country suddenly and voluntarily dispensed with their inheritance taxes. This Article seeks for the first time to understand why, and in doing so, offers lessons to those attempting to optimally design a transfer tax system within a federalist system of governance. Through original …

Proposed Cloud Services Sourcing Rule: The Right Direction, Reuven Avi-Yonah, Jeffery M. Kadet, Karen Sam

Articles

This past January, in conjunction with the issuance of a final regulation (T.D. 10022) that treats income from defined cloud transactions as income from services, Treasury and the IRS released a proposed regulation (REG-107420-24) on the sourcing of that income. In 2019 a Treasury official had asked the tax community for feedback on whether specific cloud transaction sourcing rules were needed, and the preamble to a 2019 proposed regulation asked for comments on “administrable rules for sourcing income from cloud transactions in a manner consistent with sections 861 through 865.” The feedback was “split almost evenly with regard to whether …

Nothing To Gain: The Disparate Impact Of The Capital Gains Tax Preference On Women And Persons Of Color, Ann M. Murphy

Nevada Law Journal

Tax preference provisions are scattered across the Internal Revenue Code, and the capital gains tax rate offers an enormous advantage for wealthy taxpayers. When first enacted, it was touted as eliminating the “lock-in effect” which caused investors to hold on to their investment property. Today, it is justified as encouraging investment and eliminating gains produced merely by the passage of time. The provision’s unequal benefits are hidden from the picture. Although not overtly dis-criminatory, the preference operates as a tax cut for the wealthy. Women and per-sons of color see little benefit from the lower tax rate. The difficulty of …

Should The Oecd Accept Gilti As A Valid Iir?, Reuven S. Avi-Yonah

Articles

On June 26 Treasury Secretary Scott Bessent announced a deal with the G7 to accept the global intangible low-taxed income tax as a valid income inclusion rule tax and not apply the undertaxed profits rule to U.S. multinational enterprises. Bessent said a “joint understanding” among the United States and other countries will be announced soon. “OECD pillar 2 taxes will not apply to U.S. companies, and we will work cooperatively to implement this agreement across the OECD-G20 inclusive framework in coming weeks and months,” Bessent wrote. Soon after, Senate Finance Committee Chair Mike Crapo, RIdaho, and House Ways and Means …

No Trade Wars Without Taxation -Who's To Blame, And What Comes Next?, Domenico Imparato, Reuven S. Avi-Yonah, Doron Narotzki

Law & Economics Working Papers

As tariff policy once again shapes U.S. trade strategy, this article makes a foundational claim: trade wars are, at their core, tax wars. Against the backdrop of escalating economic tensions with the United States’ trade partners, this article argues that tariffs cannot be understood apart from the fiscal architecture that sustains them. What appears to be protectionism often masks deeper structural asymmetries in the U.S. tax system.

The discussion proceeds through three interrelated dimensions: reshoring production, promoting fair trade, and raising revenue. In each, the interaction between tariffs and the tax system reveals deeper distortions. U.S. export mechanisms such as …

Fixing A 100-Year-Old Mistake, Michael J. Graetz

Faculty Scholarship

Posing the question of international tax cooperation versus competition reminds me of multiple-choice exams in which the right answer is “all of the above.” National interests determine which dominates at any given time. And in tax competition among nations, zero is not a lower bound.

In 1918, to encourage U.S. investments abroad, the United States enacted a credit for foreign taxes paid by U.S. companies and relinquished taxing rights to most foreign-source income. With the foreign tax credit, the United States assumed sole responsibility for reducing the double taxation of its residents and citizens. As the influential economist Edwin Seligman …

The Gap: Addressing The Missing Piece In HawaiʻI’S Anti-Discrimination Laws On Credit And Lending, Wendy Mun

Seattle University Law Review

This author addresses the significant gap in Hawaiʻi’s anti-discrimination laws, specifically the lack of explicit protections for LGBTQ+ individuals against credit and lending discrimination. Although federal laws like the Equal Credit Opportunity Act (ECOA) and recent interpretations by the Consumer Financial Protection Bureau (CFPB) extend some protections, they remain vulnerable to shifting federal priorities and interpretations. The author explores how other states, particularly California and Washington, have enacted robust statutory protections that clearly prohibit credit discrimination based on sexual orientation and gender identity. They argue that Hawaiʻi, despite its large LGBTQ+ population, must amend its credit protection laws to reflect …

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

The Lost Child: A Critique On Transracial Adoption Rhetoric, Hallie Conyers-Tucker

Seattle University Law Review

Transracial adoption in the United States reflects a deeply rooted history of colonialism, cultural assimilation, and racial hierarchy, masked by rhetoric focused on the “best interest of the child.” The author critiques that rhetoric and traces how adoption practices and policies, both domestic and international, have evolved to reinforce systemic inequities. Through historical analysis of the forced adoption of Native American, Black, and Asian children, it reveals how the best interest standard has been wielded not to protect children but to uphold political and racial ideologies. The author argues that the prevailing adoption framework relies on child-saving and color-blind narratives …

A Global Reconstruction: Black Internationalism And The Human Rights Regime, Britta Redwood

Seattle University Law Review

Black American advocates for civil, political, and economic rights have long taken an internationalist approach and fostered connections with international organizations and transnational movements. This engagement has also been a generative force and played role in shaping international law. Beginning in the early years of the twentieth century, Black intellectuals and leaders, spearheaded by the NAACP and the UNIA, focused on human rights as a means for addressing and repairing the harms wrought by slavery, Jim Crow, and racism. From the Paris Peace Conference of 1919 through the Universal Declaration of Human Rights, the Genocide Convention, and the drafting of …

Can The Law Protect My Craft? How Gaps In Copyright Of Knitting Patterns Symbolize A Greater Struggle For Protecting Traditionally Feminine Forms Of Intellectual Property, Kysa Walzer

Seattle University Law Review

The purpose of this article is to demonstrate the application of intel-lectual property rights within the context of copyright protection of knit-ting patterns. The article will discuss the underutilization of copyright pro-tection for knitters and crafters and its larger impact upon craft and indus-try traditionally comprised of women. Part I introduces knitting patterns and a short history of copyright protections. Part II discusses the specific areas within knitting patterns and the knitting community which give rise to legal grey areas for copyright protection. Part III discusses the larger implications of copyright and intellectual property in spaces where women traditionally make …

A New Exclusionary Rule To Protect Bodily Integrity And Discourage Pretext Stops, Josephine Ross

Seattle University Law Review

The author proposes a novel state-level exclusionary rule to reduce racial profiling and protect bodily autonomy during police encounters. The current Fourth Amendment jurisprudence fails to deter pretextual stops and frisks because the exclusionary rule often turns on officer fault and "good faith," allowing racially motivated practices to go unchecked. As federal rollbacks on diversity and data collection hinder efforts to track racial bias, the author argues for a statutory evidentiary rule that automatically excludes drug evidence found during (1) traffic stops, (2) pat-downs for weapons, and (3) consent searches, regardless of an officer’s intent or the legality of the …

Navahine V. HawaiʻI Dept. Of Transportation: The Keiki Will Lead Us, Catherine Smith

Seattle University Law Review

The author analyzes the landmark case Navahine v. Hawaiʻi Department of Transportation, which culminated in the world’s first constitutional climate settlement. Catherine Smith, serving as an expert for the youth plaintiffs, situates the case within Hawaiʻi’s legal tradition of prioritizing children’s rights and intergenerational equity. She explores the evolution of children’s constitutional protections, contrasting Hawaiʻi’s progressive jurisprudence with the dominant adult-centric legal framework on the mainland. She critiques four recurring analytical missteps in U.S. courts that marginalize children’s interests and highlights Hawaiʻi’s public trust doctrine and cultural values, such as the Aloha Spirit, as models for addressing climate-related harms. …

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

Table Of Contents

Seattle University Law Review

Table of Contents

Volume 48 Masthead

Seattle University Law Review

Volume 48 Masthead

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

The U.S. Drug Policy Hamster Wheel: A Critical Discourse Analysis Of Seattle’S New Drug Ordinance, Hallie Conyers-Tucker

Seattle University Law Review

The author critically examines Seattle’s new drug ordinance using Critical Discourse Analysis (CDA) to reveal how legislative language influences the policy's actual effect. Although the ordinance claims to prioritize diversion and community health, the use of permissive language such as “may” and “shall” grants broad discretionary power to law enforcement and undermines the stated intent. The author situates the ordinance within a broader historical context, highlighting how drug policy in the United States has consistently been shaped by racialized and stigmatizing narratives. Additionally, the author argues that meaningful reform requires reframing the discourse around substance use to support public health …

The Logic Of The Revenge Tax, Wei Cui

All Faculty Publications

Wei Cui is a professor in the Peter A. Allard School of Law at the University of British Columbia. In this article, Cui argues that the One Big Beautiful Bill Act’s formerly proposed section 899, targeting “unfair” foreign taxes, was more sensible than many observers initially perceived, and that, if seen as a restrained deployment of U.S. market power, it represented a defensible and ultimately acceptable approach for addressing the undertaxed profits rule and digital services taxes.

Seismic Shifts And Stair Steps: Revisions To The Creditability Determination In The Foreign Tax Credit Rules, Rebecca Rosenberg

Loyola of Los Angeles Law Review

There has been a seismic shift in the regulatory rules for determining which foreign taxes are eligible to be credited against a taxpayer’s U.S. federal income tax. This Article explains why these regulatory changes have such a big impact, including some non-obvious, indirect results. First, the creditability determination is the necessary first step for claiming a foreign tax credit. Second, even a small disparity between a foreign tax and the section 901 creditability regulations can now make the entire foreign tax non-creditable, even for taxpayers who are not subject to the nonconforming portion of the foreign tax. Third, the section …

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 …

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 …

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 …

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 …

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.