Taxation-Federal Commons^™

Rodriguez, Tucker, And The Dangers Of Textualism, Reuven S. Avi-Yonah

Articles

The Supreme Court is increasingly turning toward textualism in interpreting statutes. This is part of its general hostility toward judge-made law, as evidenced by its recent unanimous decision in Rodriguez that there should be no federal common law except in extraordinary circumstances. Textualism poses a particular danger in the tax context because the Internal Revenue Code is so complicated and lends itself to manipulation so that courts have since the 1930s used a variety of judge-made legal doctrines to prevent such results. The classic Gregory decision from 1935 involved just such a case: The literal application of the code resulted …

Racialized Tax Inequity: Wealth, Racism, And The U.S. System Of Taxation, Palma Joy Strand, Nicholas A. Mirkay

Northwestern Journal of Law & Social Policy

This Article describes the connection between wealth inequality and the increasing structural racism in the U.S. tax system since the 1980s. A long-term sociological view (the why) reveals the historical racialization of wealth and a shift in the tax system overall beginning around 1980 to protect and exacerbate wealth inequality, which has been fueled by racial animus and anxiety. A critical tax view (the how) highlights a shift over the same time period at both federal and state levels from taxes on wealth, to taxes on income, and then to taxes on consumption—from greater to less progressivity. Both of these …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Back To The Future: Marriage And Divorce Under The 2017 Tax Act, Mark Cochran

St. Mary's Law Journal

Abstract forthcoming

Book Review, Roberto Rosas

St. Mary's Law Journal

Abstract forthcoming.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

It’S All About The Drd, What’S Wrong With Foreign Branches, And A Few Other Things You Should Know About The New International Tax Provisions, Rebecca Rosenberg

Loyola of Los Angeles Law Review

This Article highlights and analyzes some important points about the new international tax rules. For example, such provisions do not create an entirely territorial system. The partial movement towards territorial objectives is accomplished largely through the new 100% dividends received deduction (DRD) for certain foreign dividends from foreign corporations. However, this new DRD is much more limited in its application than most taxpayers may realize (for example, due to a very long holding period requirement). Even when the DRD potentially applies, taxpayers may attempt to claim foreign tax credits instead.

In addition, some of the new tax provisions show a …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Lands Of Opportunity: An Analysis Of The Effectiveness And Impact Of Opportunity Zones In The Tax Cuts And Jobs Act Of 2017, Joseph Bennett

Journal of Legislation

No abstract provided.

Cooper V. Commissioner: Give The Inventor A (Learned) Hand, Rebecca R. Dulik

Maine Law Review

Among the Internal Revenue Code’s many rules are some taxpayer-friendly provisions that grant tax benefits. Section 1235 is one such provision, providing to an inventor preferential tax treatment for income from the sale or exchange of a patent. In Cooper v. Commissioner, although the taxpayer inventor satisfied § 1235’s requirements, the Ninth Circuit affirmed the Tax Court’s decision to deny the taxpayer § 1235’s benefits. This Note compares Cooper to other § 1235 cases and argues that Cooper was decided wrongly because of the application of the substance over form doctrine. The substance over form doctrine is overapplied in general …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

A Prescription For Charity Care: How National Medical Debt Ills Can Be Alleviated By Integrating State Financial Assistance Policies Into The Nonprofit Tax Exemption, Margarita Kutsin

Seattle University Law Review

Despite having the most expensive healthcare system in the world, the United States has been consistently ranked as having the worst system in terms of equity, efficiency, and healthcare outcomes among industrialized nations. The effects of these systemic issues are grounded in the patient experience as nearly forty-four percent of individuals have forgone recommended treatments and thirty-two percent have reported that they were unable to afford a prescription due to the high cost, according to a study conducted in 2018. Health is sacred, and financial circumstances should not determine the difference between treatment and illness, or life and death. “Financial …

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven S. Avi-Yonah, Lily Batchelder, J. Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan

Articles

The 2017 tax legislation brought sweeping changes to the rules for taxing individuals and business, the deductibility of state and local taxes, and the international tax regime. The complex legislation was drafted and passed through a rushed and secretive process intended to limit public comment on one of the most consequential pieces of domestic policy enacted in recent history. This Article is an effort to supply the analysis and deliberation that should have accompanied the bill’s consideration and passage, and describes key problem areas in the new legislation. Many of the new changes fundamentally undermine the integrity of the tax …

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Gamage, David Kamin

Articles by Maurer Faculty

The 2017 tax legislation brought sweeping changes to the rules for taxing individuals and business, the deductibility of state and local taxes, and the international tax regime. The complex legislation was drafted and passed through a rushed and secretive process intended to limit public comment on one of the most consequential pieces of domestic policy enacted in recent history. This Article is an effort to supply the analysis and deliberation that should have accompanied the bill’s consideration and passage and describes key problem areas in the new legislation. Many of the new changes fundamentally undermine the integrity of the tax …

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky

Faculty Scholarship

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, …

The Beat And Treaty Overrides: A Brief Response To Rosenbloom And Shaheen, Reuven S. Avi-Yonah, Bret Wells

Articles

In a recent article in Tax Notes International, H. David Rosenbloom and Fadi Shaheen argue that the base erosion and antiabuse tax (IRC section 59A, as enacted in 2017) is a potential violation of articles 23 and 24 of U.S. tax treaties. They say the BEAT does not override those treaties, so those agreements can be relied on to overcome the effects of the BEAT. In our opinion, that conclusion is wrong for two reasons: The BEAT is not a treaty violation, and even if were, it is a treaty override.

Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah

Articles

The Tax Cuts and Jobs Act of 2017 (“TCJA”) contains a provision that on its face appears to be a blatant violation of the WTO’s Subsidies and Countervailing Measures (SCM) rules. New IRC section 250 applies a reduced 13.125% tax rate to “foreign derived intangible income” (FDII), which is defined as income derived in connection with (1) property that is sold by the taxpayer to any foreign person for a foreign use or (2) services to any foreign person or with respect to foreign property. In other words, this category comprises exports for property and services, including royalties from the …

Accessible Reliable Tax Advice, Emily Cauble

University of Michigan Journal of Law Reform

Unsophisticated taxpayers who lack financial resources are disadvantaged by a shortage of adequate tax advice. The IRS does not have the resources to answer all questions asked, and the IRS’s informal advice comes with no guarantee as to its accuracy and offers the taxpayer no protection when it is mistaken. Furthermore, non-IRS sources of advice have not sufficiently filled the void left by a lack of satisfactory IRS guidance. These biases against unsophisticated taxpayers have been noted by existing literature. This Article contributes to existing literature by proposing several novel reform measures to assist unsophisticated taxpayers.

First, with respect to …

Tax Compliance In A Decentralizing Economy, Manoj Viswanathan

Georgia State University Law Review

Tax compliance in the United States has long relied on information from centralized intermediaries—the financial institutions,employers, and brokers that help ensure income is reported and taxes are paid. Yet while the IRS remains tied to these centralized entities,consumers and businesses are not. New technologies, such as sharing economy platforms (companies such as Airbnb, Uber, and Instacart)and the blockchain (the platform on which various cryptocurrencies are based) are providing new, decentralized options for exchanging goods and services.

Without legislative and agency intervention, these technologies pose a critical threat to the reporting system underlying domestic and international tax compliance. Until now, legal …

26 Usc Section 280e: Will The Dragon Now Be Slayed?, Bill Greenberg, Rebecca Greenberg

Journal of Law and Policy

26 USC § 280E of the Internal Revenue Code (“§ 280E”) prohibits the deduction of ordinary business expenses for businesses deemed by the federal government to be drug traffickers as defined by the Controlled Substances Act (“CSA”). The tax enactment is specifically designed to serve as a disincentive to socalled drug traffickers who might otherwise deduct “ordinary and necessary business expenses” from their taxes. However, this harms legitimate cannabis businesses by promoting unintended consequences, such as under-reported income. For three decades, there has been a patent incongruity between § 280E’s congressional purpose and the expansion of state-legalized cannabis businesses in …

Guilty As Charged: Reflections On Tra 17, Reuven S. Avi-Yonah

Articles

The international provisions of TRA 17S are in some ways an improvement over TRA 17H, but they are nevertheless deeply flawed. U.S.-based MNEs have accumulated $ 2.6 trillion of low taxed income offshore. This "guilty" income derives not just from IP developed in the United States, but in many cases (for example, Google, Facebook, and Big Pharma) also from exploiting the U.S. consumer market. This is a classic "round tripping" situation in which both the supply side (production) and the demand side (consumption) are in the United States, and yet both TRA 17H and TRA 17S let the guilty parties …

Once More, With Feeling: Tra 17 And Original Intent Of Subpart F, Reuven S. Avi-Yonah, Nir Fishbien

Articles

For the first time since 1913, Congress is considering abandoning the principle that U.S. residents should be subject to tax on all income “from whatever source derived.” Specifically, the proposed tax reform legislation, the Tax Cuts and Jobs Act, would completely exempt from U.S. taxation dividends from controlled foreign corporations. This is therefore a good occasion for considering the reasons we tax those dividends in the first place.

Trump's "Big-League" Tax Reform: Assessing The Impact Of Corporate Tax Changes, Ryan J. Clements

Michigan Business & Entrepreneurial Law Review

This Article reviews and assesses corporate tax reforms advocated by President Donald Trump during his presidential campaign and signed into law since taking office (the Tax Cuts and Jobs Act of 2017), in light of economic theory and the Modigliani-Miller Irrelevance Theorem. The Ar-ticle argues that companies will adapt polcies in light of new taxation mea-sures, thereby impacting the effectiveness of reform. In support of this conclusion, the Article surveys two empirical studies—one in relation to the repatriation efforts of President Bush’s Homeland Investment Act and an-other in relation to unexpected changes to the taxation of Canadian income trusts—to highlight …

Open Source: The Enewsletter Of Rwu Law 09-22-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Donald Trump Vs. Roger Williams 05-09-2017, David Logan

Life of the Law School (1993- )

No abstract provided.

Through The Lens Of Complex Systems Theory: Why Regulators Must Understand The Economy And Society As A Complex System, James M. Giudice

University of Richmond Law Review

No abstract provided.

How The 1 Percent Pays Taxes; How The 99 Percent Could: The Subchapter T Worker Cooperative Tax Loophole, Michael Haber

Journal of Law and Policy

The ratification of the Sixteenth Amendment to the United States Constitution granted Congress the right to tax income “from whatever source derived.” Since its inception, the tax code has become long and complicated, filled with broad taxation rules and innumerable exceptions. Over time, the tax code has been amended with the stated purpose of promoting “fairness, efficiency, and enforceability.” However, the complexity of the tax code has led to abuse of “tax loopholes” by wealthy taxpayers who want to avoid paying their fair share of taxes. While abuse is likely to continue, as legislators remain intent on lowering taxes on …

How The 1 Percent Pays Taxes; How The 99 Percent Could: The Subchapter T Worker Cooperative Tax Loophole, Michael Haber

Journal of Law and Policy

The ratification of the Sixteenth Amendment to the United States Constitution granted Congress the right to tax income “from whatever source derived.” Since its inception, the tax code has become long and complicated, filled with broad taxation rules and innumerable exceptions. Over time, the tax code has been amended with the stated purpose of promoting “fairness, efficiency, and enforceability.” However, the complexity of the tax code has led to abuse of “tax loopholes” by wealthy taxpayers who want to avoid paying their fair share of taxes. While abuse is likely to continue, as legislators remain intent on lowering taxes on …

Qualified Residence Interest Deduction: A Win For Unmarried Co-Owners, Christine Manolakas

Nevada Law Journal

No abstract provided.