Tax Law Commons^™

Carried Interest: Recent Tax Holding Envisions Need For New Legislation, Patrick Lucas

FIU Law Review

In the financial world, carried interest represents the share of the profits of a private equity fund allocated to its manager which is disproportionate when compared to the manager’s relative capital contribution. On May 3, 2023 the Tax Court issued its memorandum opinion in ES NPA Holding, LLC v. Commissioner. The decision quickly became popularized as providing reassurance to sponsors of private equity funds that they will rarely, if ever, realize income as a result of the issuance of a profits/carried interest (the so-called front-end issue for carried interest). The so-called back-end issue is how the income arising from a …

Getting Donor-Advised Funds Regulation Right: Closing The Public Support Test Loophole, Benjamin Leff

Scholarly Articles in Law Reviews & Journals

Donor-Advised Funds (“DAFs”) have been the subject of vigorous critical scholarship in the past two decades. This Article addresses two timely issues in DAF regulation: the theoretical justifications for extra strict regulation of DAFs, and, in light of those justifications, how to close a major loophole in the regulatory scheme. DAFs have been called “virtual private foundations” because they are similar in some respects to private foundations, but until two decades ago, they were treated for legal purposes as public charities. In 2006, Congress enacted legislation that both formally recognized DAFs for the first time and subjected them to several …

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Scholarship

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

Wellness And The Tax Law, Leigh Z. Osofsky

Faculty Publications

The tax law has long provided extensive subsidies for “medical care.” These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care …

Associational Rights Versus Nonprofit Transparency: Information Reporting In The Internet Age, Roger Colinvaux

Scholarly Articles

For decades, the nation’s charitable and nonprofit organizations have been required to file an information return, known as the Form 990, with the Internal Revenue Service. Congress mandates that the return be made publicly available. Such information reporting, both to the IRS and to the public, is the cornerstone of the federal government’s approach to assuring that nonprofit organizations are legally compliant. The Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta (APF), however, casts a shadow on the constitutionality of nonprofit reporting requirements. In APF, the Court held unconstitutional California’s effort to require charities to …

Are Nonprofit Tax Exemptions And Deductions “Federal Financial Assistance”? Should They Be?, Lloyd Hitoshi Mayer

Journal Articles

Two recent federal court decisions have reignited the debate over whether “Federal financial assistance” as used in four federal anti-discrimination statutes includes the tax benefits enjoyed by most nonprofit organizations. Both courts concluded that it does. While an appellate court reversed one decision, and the other case settled without appellate review, these holdings create significant uncertainty. And this uncertainty affects the more than 1.8 million tax-exempt nonprofits, many if not most of which do not receive federal financial assistance through other channels and so could safely conclude these statutes do not reach them, absent these decisions.

This Article first considers …

Structural Tax Reform And The Next Reit Revolution, Sloan G. Speck

Publications

No abstract provided.

Taxing Novelty, Amanda Parsons

Publications

The advent of any new and unfamiliar economic activity sparks a flood of questions across a variety of legal fields, including tax law. This Article diagnoses the legal uncertainties surrounding novel activities as challenges of legibility in statecraft. Legibility is the process by which the state simplifies complex and often unfamiliar systems into a format that can be governed. Across broad areas of the law, placing things and activities into different legal categories is a means for the state to achieve legibility.

This Article aims to incorporate the framework of legibility into existing scholarly discourse on legal categories. Through the …

International Economic Agreements As Impediments To Carbon Tax Climate Change Mitigation: Is The Un Framework Tax Convention The Way Forward?, Edwin Vanderbruggen

Indian Journal of International Economic Law

This article outlines some of the international legal impediments to domestic environmental tax policies in furtherance of climate change mitigation, i.e. certain WTO rules on trade in goods, fuel tax exemptions in aviation treaties, and tax stabilisation provisions that are protected under the umbrella clause of investment treaties. It argues that international action is the most effective and often the only option to address those legal obstacles. The emergence of the United Nations Framework Convention on International Tax Cooperation (‘FTC’) is, in that regard, a timely development. Given the central institutional role UN-related bodies already have in climate change, sea …

Into The Sunset: Divorcing Families Need Their Slice Of The Tcja Reversions, John C. Mcdonald

BYU Law Review

On its path to sufficiently offsetting its major cut to the corporate income tax rate in 2017, Congress turned to a surprising source for funds: the alimony support payments of recently divorced families. Alimony’s inclusion/deduction regime in §§ 71 and 215 of the Code allowed divorcing couples to reach mutually beneficial divorce agreements for over half a century until it was unceremoniously repealed by the Tax Cuts and Jobs Act of 2017 with a striking lack of satisfying legislative justifications. This Note suggests that in evaluating the impact of the repeal, Congress and others have failed to consider an important …

The 40th Annual Tei - Sjsu High Tech Tax Institute Conference On November 4-5, 2024: The Latest And Greatest In Equity Compensation, Shuang Zhang

The Contemporary Tax Journal

No abstract provided.

The 40th Annual Tei-Sjsu High Tech Tax Institute Conference On Nov. 4-5, 2024: R&D In Uncertain Tax Times, Jing Luo

The Contemporary Tax Journal

No abstract provided.

The 40th Tei-Sjsu High Tech Tax Institute Conference On Nov 4-5, 2024: Ip Development In Other Countries, Junli Zhang

The Contemporary Tax Journal

No abstract provided.

The Contemporary Tax Journal’S Interview With Benjamin R. Shreck, Shuang Zhang

The Contemporary Tax Journal

No abstract provided.

Front Matter (Letter From The Editor, Masthead, Etc.)

The Contemporary Tax Journal

No abstract provided.

Analysis Of H.R. 7458 - 118th Congress Made In The U.S.A. Act., Jung-Hee Kwon, Jinjin Yang

The Contemporary Tax Journal

No abstract provided.

Gleim Cpa Review — Regulation (Reg) & Tax Compliance And Planning (Tcp) Sample Questions

The Contemporary Tax Journal

No abstract provided.

Fbar Penalty Is Not Extinguished At Death: Hendler, No. 23 Civ. 3280 (Deh) (Sd Ny, 2024), Shuang Zhang

The Contemporary Tax Journal

No abstract provided.

The Contemporary Tax Journal Volume 13, No. 2 – Winter 2024

The Contemporary Tax Journal

No abstract provided.

The 40th Annual Tei-Sjsu High Tech Tax Institute Conference On Nov. 4-5, 2024: Ai In The Corporate Tax Department - Let’S See It!, Raymond Clark

The Contemporary Tax Journal

No abstract provided.

The 40th Annual Tei-Sjsu High Tech Tax Institute Conference On Nov 4-5, 2024: The Future Of The Corporate Tax Department, Cynthia Flores

The Contemporary Tax Journal

No abstract provided.

Deductibility Of Investigatory Expenses Incurred In Business Expansion: North Carolina National Bank V. United States, Edward R. Benjamin Jr.

Maine Law Review

Section 162 of the Internal Revenue Code allows the current deduction of "all the ordinary and necessary expenses paid or incurred . . . in carrying on any trade or business . . . .” Exactly which business expenditures meet the requirements of section 162, however, has not been easy for courts to determine. In an attempt to enunciate a standard that is easily applicable to complex business transactions, courts have refused to allow current deduction of business expenditures which result in a benefit or advantage with a useful life which continues beyond the taxable year. In North Carolina National …

Application Of The Federal Securities Acts To The Sale Of A Closely Held Corporation By Stock Transfer, Loftus C. Carson Ii

Maine Law Review

The purchase and sale of a closely held corporation is a commonly occurring transaction which may be accomplished by a transfer of stock or a transfer of assets. Structuring such a transaction as a sale of stock, however, may offer certain advantages not attainable if the transaction is structured as a sale of assets. For example, non-assignable contracts and leases, not transferable with a sale of assets, may pass to the transferee of corporate stock. The transferor generally will be absolved of all of the enterprise's liabilities since, by law, they pass with the transfer. Transferors subject to compliance with …

Backing-Into Internal Revenue Code Section 338, Drew Erik Swenson

Maine Law Review

In recent years there has been an increasing incidence of corporate takeovers. Typically, the takeover begins with a purchasing corporation acquiring a controlling but less than 100% interest in the target corporation. Often, the partial ownership is merely a transitory step toward complete ownership, shortly after which the target is liquidated or merged into what is now the parent corporation. In other instances, the target retains its separate corporate existence within a parent/subsidiary relationship. The choice between termination and continued corporate existence is made only after a careful appraisal of the economic and tax consequences to the parent and the …

Personal Injury Compensation As A Tax Preference, Lawrence A. Frolik

Maine Law Review

Samuel Johnson tells us "[d]epend on it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully." Projected federal budget deficits in the realm of $200 billion a year for the foreseeable future ought to have a similar effect: a concentration on means of reducing these unacceptable deficits. The simple answer is either to spend less or tax more, or perhaps, a bit of both. If we choose to tax more, we must either raise tax rates or widen the tax base, or both. The former, a general rise in tax rates, …

Gifts, Joint Ownership, And Marital Property: Interspousal Transfers Of Property Under Maine's Marital Property Act, Paul Fillmore

Maine Law Review

The classification of property in divorce proceedings as either marital or individual is crucial because under Maine's Marital Property Act a divorce decree can dispose of only marital property. Once the court identifies the marital property, the actual division of that property is within the court's discretion. Courts, however, often have difficulty classifying property which was once individual property but which was transferred by the owner spouse into joint ownership during the course of the marriage. Maine courts have reached different results in these situations depending on whether they have read the Marital Property Act literally or in the context …

Hyperlocal Gift Economies Under The Duberstein Gift Standard, Nicolás R. Munsen

Notre Dame Law Review Reflection

Hyperlocal gift economies, such as those moderated by the “Buy Nothing Project,” have become increasingly popular in the United States and abroad within the last decade. Explicitly banning the buying, selling, trading, or bartering of goods and services, hyperlocal gift economies instead encourage local community members to give to each other out of their own abundance and without any expectation of return or obligation—in short, to give and receive gifts. But while members of these groups regard these transactions as gifts, it is unclear if the Internal Revenue Service would agree. The Internal Revenue Code’s definition of “gift” in I.R.C. …

Three Proposals For Fixing The Tcja, Reuven S. Avi-Yonah

Articles

The year 2025 promises to be important in U.S. tax history for three reasons. First, the expiration of the individual provisions of the Tax Cuts and Jobs Act means that Congress is very likely to enact important tax legislation to prevent tax increases for millions of individual taxpayers. Second, a new administration frequently means tax legislation, typically through budget reconciliation if the same party controls Congress (1981, 1993, 2001, 2017, 2022). Third, the trifecta of Supreme Court decisions in 2024 (Moore, Corner Post, and Loper Bright) suggests that there may be a spike in litigation challenging various tax provisions as …

Tax As Hybrid Law: Borrowing And Convergences, Henry Ordower

All Faculty Scholarship

[This article argues that tax is a hybrid of civil and common law, public and private law, and is cross-disciplinary. It observes that tax law has become an all-purpose tool for legislators. It seeks to demonstrate how the U.S., a common law jurisdiction, has turned to civil law models for taxation while civil law jurisdictions and the European Union have sought common law models to combat tax avoidance. The ubiquity of tax and its public law influence on private law transactions, its cross disciplinary nature, and its deployment as a legislative tool to manage the economy make it a candidate …

Guest Editorial – Special Issue: Environmental, Social, Governance, And Taxation, Vincent Ooi, Amy Lawton

Research Collection Yong Pung How School Of Law

This special issue of the eJournal of Tax Research comprises five articles that are a selection of papers that were originally presented at the SMU–Edinburgh Environmental, Social, Governance and Taxation Conference hosted by the Yong Pung How School of Law, Singapore Management University in April 2024.