Tax Law Commons^™

The Income Tax, The Constitution, And The Unrealized Importance Of Helvering V. Griffiths, Lawrence Zelenak

Faculty Scholarship

The Supreme Court recently granted certiorari in Moore v. United States, for the purpose of deciding whether the realization doctrine remains a constitutional limitation on Congress's ability to impose an unapportioned income tax, as the Court held in its famous 1920 decision in Eisner v. Macomber. Although it is natural to look to 1920 and Macomber as the cause of today's uncertain scope of the congressional power to tax income, what did not happen in the Court's 1943 decision in Helvering v. Griffiths is as significant as what did happen in 1920. the presence of Moore on the Court's docket …

Unplugging Heartbeat Trades And Reforming The Taxation Of Etfs, Jeffrey M. Colon

Faculty Scholarship

The much-touted tax efficiency of equity exchange traded funds (ETFs) has historically been built upon portfolios that track indices with low turnover and the tax exemption for in-kind distributions of appreciated property.

This rule permits ETFs to distribute appreciated shares tax-free to redeeming authorized participants (APs) and reduce a fund’s future capital gains. ETFs and APs, working together, exploit this rule in so-called heartbeat trades in which an ETF distributes shares of a specific company or companies to a redeeming AP, instead of a pro rata basket of the ETF’s portfolio. The distributed securities are appreciated shares of companies that …

The Shifting Economic Allegiance Of Capital Gains, Amanda Parsons

Publications

Technological advances and the digitalization of the global economy have created an economic environment beyond the imagination of the original designers of the international tax system. Much scholarly attention has been paid to the question of how these economic transformations should affect which country is able to tax a multinational company's income. But which country should be able to tax capital gains income from the sale of that company's shares is an important and overlooked question.

This Article answers this question. It concludes that taxing authority over capital gains income must be reallocated to the countries in which companies conduct …

Covid-19 Relief For Opportunity Zone Funds And Investors, Adam Wallwork, Gary Hecimovich

Cleveland State Law Review

This Article describes how temporary changes to the qualified opportunity zone (QOZ) tax incentive, combined with new reliance regulations that clarify the requirements for qualified opportunity zone businesses (QOZBs) to modify their written plans to expend working capital in response to the ongoing coronavirus emergency, will make more individuals and entities eligible for federal tax stimulus by increasing flexibility for the qualified opportunity funds (QOFs) and QOZBs in which they invest to redeploy their capital into qualifying business development projects in a QOZ.

Invaluable: Value Added Tax, Post-Colonialism, & The United States Of America, Travis Henry-Reid

Brooklyn Journal of International Law

Value-added tax is occasionally proffered as an alternative or even an addition to the federal income tax system. Value-added tax, or VAT, is widely accepted throughout Europe and indeed the world, but the United States remains a notable exception. This choice remains an intriguing one to revisit from time to time. This Note, however, will argue that VAT is arguably a by-product of the colonial frameworks that once dominated our global consciousness, and therefore, that VAT is not right for the United States. The Note will, where appropriate, compare and contrast key differences between the system, or systems, of taxation …

Penerapan Doktrin Piercing The Corporate Veil Terhadap Negara Pada Holding Badan Usaha Milik Negara, Deny Adi Pratama

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The lack of regulation regarding group company's conception in Indonesia provokes several problems. The policy on establishing holding BUMN in Indonesia only supervised by Government Regulation Number 72 Year 2016 concerning Change of Government Regulation Number 44 Year 2005 regarding Procedure of Participation and Administration Funds upon State-Owned Enterprises and Limited Liability Company. However, the provision which becomes the legal basis underlying BUMN and Limited Liability Company are supervised upon regulation equals to act. Those of which cause a contradiction amongst both provisions of laws and regulation. The rights and obligations along with the country's responsibilities as a public legal …

Pembentukan Holding Company Badan Usaha Milik Negara (Bumn) Di Sektor Infrastruktur Ditinjau Dalam Persaingan Usaha Tidak Sehat, Wiesma Mara Rangga

"Dharmasisya” Jurnal Program Magister Hukum FHUI

That a large number of state-owned enterprises (SOEs) in infrastructure has caused competition, especially when competing against one another in participating in the same tender. This is not in line with the synergy plan between SOEs, which is one of the essential pillars. SOEs belonging to similar value chain groups should work together to accelerate economic growth and synergies at various levels through corporate, transaction, and operational restructuring. Optimizing the formation of infrastructure holding can be done through collaboration and synergy between SOE entities, strengthening and increasing the capacity of each holding member, and integrating infrastructure development. However, the plan …

Masuknya Tenaga Pendidik Asing Di Bidang Teknologi Informasi Dalam Rangka Liberalisasi Pendidikan Tinggi Dalam Menjawab Permasalahan Kebutuhan Atas Sumber Daya Manusia Yang Berkualitas Di Era Industri 4.0, Rodeen Chenggaliex

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Education liberalization has become a hot topic of discussion in Indonesia lately, starting with bringing in foreign higher education leaders to Indonesian universities; in the Industrial 4.0 era, Indonesia still lacks qualified information technology experts to support industry 4.0. Educational sciences in Indonesia are now considered to be still unable to compete with educational sciences abroad. The liberalization of education will undoubtedly have a positive impact on the development of academic science in the development of the Indonesian nation. The problem is this paper focuses on the issue of the low quality of education in the field of information technology …

Perbandingan Sistem Hukum Civil Law Dan Common Law Dalam Penerapan Yurisprudensi Ditinjau Dari Politik Hukum, Praise Juinta W.S. Siregar

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The legal system is related to the concept of law, where the two things have an inseparable relationship with each other. In principle, the legal system regulates the life of a community so that conflicts do not occur, where if the conflict is unavoidable, then the legal system has an important role in resolving the conflict. The legal system in the judiciary has a major influence in the application of the law, especially for judges in examining and deciding a case. The Panel of Judges in deciding a case will definitely pay close attention to the legal system in its …

Kebijakan Countercyclical Sebagai Upaya Kesejahteraan Masyarakat, Made Cinthya Puspita Shara

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Indonesia's high level of economic growth is in line with the development of businesses that increase capital by making credit agreements with financial institutions. However, the state spread of the co-19 pandemic case has been declared a national disaster, impacting the implementation of credit agreements between the debtor and financial institutions. Economic problems make it difficult for people to carry out their obligations. A countercyclical buffer policy is a buffer that is carried out by providing additional capital to replace losses if excessive credit growth occurs, which has the potential to disrupt financial stability. Bank Indonesia Policy PBI No.17/22/PBI/2015, also …

Pengelolaan Royalti Dari Pencipta Lagu Yang Tidak Terdaftar Di Lembaga Manajemen Kolektif Oleh Lembaga Manajemen Kolektif Nasional, Mohamad Thaufiq Rachman

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Royalty is a reward received by the author or owner of the related right concerning the utilization of their Economic Rights following Article 1 point 21 of Law No. 28, 2014 regarding Copyright ("UUHC 2014"). Royalty could also be interpreted as a form of appreciation for the Author's Works, such as song and/or music. Encouraging the spirit of industry players, including songwriters, is essential for continuous growth. As mentioned in the general explanation section of UUHC 2014, Copyright is the most important basis of the national creative economy. With the fulfillment of the protection and development of this creative economy, …

Pengakhiran Kontrak Sebelum Terjadi Wanprestasi Oleh Pihak Yang Mengantisipasi Kegagalan Pelaksanaan Kewajiban, M. Hillman Mehaga S

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Termination of an agreement/contract in a situation where a party has known that he/she/it will not be able to perform its obligation(s) based on the agreement/contract to avoid the occurrence of the larger losses if the agreement/contract is still ongoing. Under Indonesian civil law, a defaulting party or a party who has anticipated that he/she/it will fail to meet obligation(s) does not have the right to file a claim to terminate an agreement/contract. This means that, this party can only be passive until the default actually happens and wait until the non-defaulting party to file the claim with the claim …

Peranan Perusahaan Penjaminan Dalam Mengatasi Permasalahan Umkm Mengakses Kredit Di Sektor Perbankan (Setelah Berlakunya Undang-Undang Nomor 1 Tahun 2016 Tentang Penjaminan), Luh Putu Prema Shanti Putri Saraswati

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Micro, Small and Medium Enterprises (MSME’s) have an important role in the development of the Indonesian economy. So far, MSME’s are still faced with various kinds of obstacles, one of which is that MSMEs still face problems related to limited access to funding to financial institutions. Limited access to funding to financial institutions is partly due to the limited assets owned by MSME’s to be used as collateral for bank loans. Guarantee is the activity of providing guarantees by the Guarantor for the fulfillment of Guaranteed financial obligations to the Recipient of the Guarantee. Guarantee Company is a legal entity …

Perbandingan Penyelesaian Sengketa Lingkungan Hidup Melalui Mekanisme Gugatan Warga Negara (Citizen Lawsuit) Di Indonesia Dan Amerika Serikat, Listyalaras Nurmedina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

A citizen lawsuit is a lawsuit filed by citizens against state officials that cause negligence and cause losses. This negligence is an act against the law (onrechtmatige overhead daad), where the state is ordered to improve its performance and issue a policy for general governing policies (regeling). It is intended to ensure that the negligence that previously occurred will not be repeated. A citizen lawsuit is almost similar to a class action lawsuit because it has the same thing, namely that the lawsuit is filed involving the interests of many people represented by one or more people. The difference is …

Perlindungan Investasi Terhadap Pelaku Usaha Dalam Kegiatan Penanaman Modal Di Bidang Pertambangan (Studi Kasus Pada Pt. Emas Mineral Murni), Liani Hasibuan

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The role of law in supporting investment is urgently needed in order to create legal certainty. According to this, this article intended to examine how investment protection is for investors starting businesses in the mining sector. The problems which were discussed in this article are about the granting of Mining Business Permits (IUP) through the system called Online Single Submission (OSS), which is the legality to start mining activities by observing Law No. 25 of 2007 on Capital Investment and Law No. 4 of 2009 on Mineral and Coal Mining. The research of the case, which occurs in the Ruling …

Perspektif Kitab Undang-Undang Hukum Perdata Dan Uu Nomor 13 Tahun 2003 Tentang Ketenagakerjaan Terkait Dengan Perlindungan Hukum Terhadap Pengusaha Terhadap Wanprestasi Ikatan Dinas Yang Dilakukan Oleh Pekerja, Lia Amalia

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Labor issues cannot be separated from the Agreement between the Worker and the Employer, both as the initial Agreement when implementation or an additional Agreement such as the official bond Agreement. Law No.13 of 2003 on Manpower has regulated that every employee who is bound by a contract to work for/ serve the enterprise for a certain period in return for training or education. She/He is not allowed to resign during the term of the official binding Agreement. The legal consequences for violations are fine in the form of money. In this case, Gresik District Court on August 2014 decided …

Status Quo Kewenangan Perusahaan Asuransi Dalam Menerbitkan Produk Penjaminan Pasca Berlaku Efektifnya Undang-Undang No. 1 Tahun 2016 Tentang Penjaminan, Kalih Krisnareindra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Risk is something that is always exist in various type of business. Risk management commonly used the assistance of insurance companies to manage its risk by risk transfer. The current prevailing law allows the insurance industry to develop its products wider than the explicitly defined business lines in the regulation. Historically, the guarantee/surety business has been marketed jointly between insurance companies and guarantee/surety companies. This can be traced through laws and regulations that provide the authority to both type of companies to issue guarantee/surety products. But with the enactment of Law No. 1 of 2016 concerning Guarantees, there is an …

Kegiatan Monopoli Pada Bumn Kepelabuhanan: Studi Terhadap Pelaksanaan Perjanjian Tertutup (Tying Agreement) Oleh Pt Pelabuhan Indonesia Ii (Persero) Pada Area Konsesi Pelabuhan Dalam Perspektif Hukum Persaingan Usaha, Kahfiarsyad Julyan Elevenday

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This study aims to find out about how the monopoly activities including how the implementation of a tying agreement conducted by PT Pelabuhan Indonesia II (Persero) as a SOE in the perspective of Competition Law. This study is conducted by analyzing the consideration of judges as stated in the Supreme Court of Republic Indonesia Decision No. 302 K/Pdt. Sus-KPPU/2014 and North Jakarta District Court Decision No. 1/Pdt/KPPU/2015/PN Jkt.Utr. The results of this study indicate that the monopoly activities conducted by PT Pelabuhan Indonesia II (Persero) in its concession area are a monopoly by law as stated in Article 50 a …

Perlindungan Konsumen Startup Digital Yang Bergerak Di Bidang Layanan Urun Dana Melalui Penawaran Saham Berbasis Teknologi Informasi Dalam Sistem Hukum Indonesia, Juliyani Purnama Ramli

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The existence of equity crowdfunding is one of the solutions for micro, small, and medium enterprises financing. The government already regulates equity crowdfunding matters by Financial Service Authority Number 37/POJK.04/2018 concerning equity crowdfunding. The problem is that the state has not fully protected consumers of equity crowdfunding. Its because the definition of equity crowdfunding consumer does not fulfill the consumer elements in Consumer Protection Regulation. The Financial Service Authority has not explicitly regulated consumer protection yet, even though equity crowdfunding has a great opportunity to develop and be used by the community directly.

Keywords: equity crowdfunding, financial service authority, and …

Pengujian Tindakan Penyalahgunaan Wewenang Pejabat Di Pengadilan Tata Usaha Negara, Bob Humisar Simbolon

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The examination of the Abuse of Authority in the State Administrative Court is an administrative act or action that must be based on the existing laws and regulations. However, along with the growing understanding of the state of material law, the understanding that government based on laws has shifted to an understanding of state government based on law. The purpose of this paper is to see the extent of the authority of the State Administrative Court in examining territorial boundaries and the authorized procedures at the State Administrative Court. The research method is in the form of normative juridical research …

Penanganan Situs Internet Bermuatan Negatif, Muhammad Farhansyah Hamid

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This paper discusses the concept of an internet site that is defined to be negative and how the Indonesian law regulates it, and about the mechanism of negative site handling based on peraturan menteri komunikasi dan informasi nomor 19 tahun 2014. Furthermore, it will be discussed about the human rights to have access to the information and how negative content handling is related to it. This legal research uses a normative juridical approach with secondary data from national, regulations, books, and interviews with sources. The result of this research is that content handling is so related to limitation of human …

Konversi Akad Ijarah Al-Muntahiya Bi Al-Tamlik (Imbt) Menjadi Akad Mudharabah, Ana Eka Fitriani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

POJK No.29/POJK.03/2019 about Earning Asset Quality and Establishment of Allowance for Earning Asset Losses for Islamic Rural Banks states that one of the conversions that can be done is the conversion of Ijarah Al-Muntahiya Bi Al-Tamlik (IMBT) contract to Mudharabah contract. When IMBT is converted into Mudharabah contract, at the end of IMBT contract the debtor can’t have the object. Because, the object turned into capital that was given by Shahib al-Mal to Mudharib. There is an adversity that is more detrimental to one party and beneficial to the other. If there is a conflict between adversity and benefit, then …

Implementasi Peraturan Daerah Dalam Otonomi Daerah Menjadi Salah Satu Parameter Good Governance, Ananda Rayhana Putri

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Regional Regulation as one of the regional legal products is something inherent with the Regional Autonomy system. This is a consequence of the regional autonomy system itself which is based on independence and is not a form of freedom of an independent government unit. Independence itself means that the Region has the right to regulate and manage the domestic affairs of its own government. The authority to regulate here means that the region has the right to make legal decisions in the form of laws and regulations. In forming a region it is not easy because it requires sufficient knowledge …

Keberadaan Ombudsman Pasca Putusan Mahkamah Konstitusi Nomor 62/Puu-Viii/2010, Anggria Septariani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

After the Constitutional Court Decision Number 62 / PUU-VIII / 2010 still recognizes the implementation of the function of the regional ombudsman in examining reports on suspected maladministration in the administration of public services, the existence of an ombudsman in the regions is still recognized and continues to supervise the elements of regional government administration, even though does not mean that the institution is a representative of the Ombudsman of the Republic of Indonesia. It is necessary to make clear arrangements related to the duties and functions of the Ombudsman of the Republic of Indonesia and the regional Ombudsman Institute. …

Perbandingan Hukum Rahasia Dagang Indonesia Dengan Amerika Serikat, Monica Yesica Febrina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Legal protection of intellectual property is an important element in supporting creativity and trade. Indonesia has ratified the Agreement and Trade Related Aspects of Intellectual Property Rights and has enacted Law number 30 of 2000 concerning Trade Secret. Legal protection of trade secrets aims to protect business actors in trade practices both regionally and internationally. In addition, protection of trade secrets can prevent unfair business competition. Thus, business people have wider opportunities to develop their creativity and business. This research method is a normative research with comparative research type. This study examines the comparison of intellectual property protection laws specifically …

Perlindungan Bagi Nasabah Dalam Penyelenggaraan Layanan Perbankan Digital Di Indonesia, Melia Prabangasta Yustisia

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The development of digital banking services in Indonesia is growing along with the increasingly intense competition in the banking industry. The internet changed the paradigm in terms of communication and business, where the development of these technologies brought changes in banking business activities towards digital banking. Customers can access financial services only by using mobile phones, easily conduct banking service transactions using various methods ranging from short message service (SMS) Banking to internet banking, access banking services without visiting the branch office but through application services from each bank. However, the development of digital banking services needs to be followed …

Aransemen Kontemporer Musik Tradisional Sebagai Inovasi Pemajuan Kebudayaan Dalam Lingkup Hak Kekayaan Intelektual, Mohammad Ryan Hernandi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Traditional Knowledge and Traditional Cultural Expressions are traditional forms of intellectual property that are closely related to copyright within the scope of Intellectual Property Rights (IPR). Among the various types of Expressions of Folklore in Indonesia, traditional music and songs are one of them. Traditional music is music or sound art found in various regions of Indonesia that is born and develops and is passed down from one generation to the next. Traditional music usually uses the language, style, and traditions of the region it originates from. The traditional music of each region has its own characteristics, for example, the …

Kelemahan Undang-Undang Hak Cipta Dalam Melindungi Ekspresi Budaya Tradisional, Amalia Karunia Putri

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The Indonesian perspective on materiality is concrete that is communal. Laws and regulations relating to the protection of Traditional Knowledge and Traditional Cultural Expressions in Indonesia have not been able to properly support the development of Traditional Knowledge and Traditional Cultural Expressions. The number of rules regarding inventory scattered in several laws has apparently not been able to connect with one another to make Traditional Knowledge and Traditional Cultural Expressions develop. Therefore, apart from protection efforts, it is also important to use it in the framework of protecting traditional knowledge itself. Because Traditional Cultural Expressions are one of the identities …

Perlindungan Hak Cipta Terhadap Penggandaan Permainan Video (Copyright Protection Against Video Game Copying), Ahmad Fajri Wibowo

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Copyright protection provides legal protection to creative industries. One of the creative industries that need to be protected is the video game industry. The development of video games in Indonesia is very fast, therefore legal protection is needed to maintain the development of the video game industry. Basically a video game is an object of creation contained in Law Number 28 of 2014 concerning copyright. In the development of the video game industry, there are problems that occur such as the number of illegal copies of video games. Thus, copyright protection plays a very important role in maintaining the video …

Penerapan Tindak Pidana Terhadap Pelanggaran Rahasia Dagang Di Indonesia Dan Jepang, Ariffan Rahman Hakim

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Criminal acts against trade secret violations regulated in Law Number 30 of 2000 have an important role in protecting ideas that have a selling value that can provide benefits in the business world and this study compares the criminal acts of trade secret violations regulated in Japan because both are in accordance with the provisions of the TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights including Trade in Counterfeit Goods) as an international agreement in an effort to protect Intellectual Property Rights. This study aims to determine how the application of sanctions stipulated in Law no. 30/2000 regarding Trade …