Taxation-Federal Commons^™

A Bundle Of Confusion For The Income Tax: What It Means To Own Something, Stephanie Hunter Mcmahon

Northwestern University Law Review

No abstract provided.

Schedularity In U.S. Income Taxation And Its Effect On Tax Distribution, Henry Ordower

Northwestern University Law Review

No abstract provided.

What A History Of Tax Withholding Tells Us About The Relationship Between Statutes And Constitutional Law, Anuj C. Desai

Northwestern University Law Review

No abstract provided.

Citizens United And Taxable Entities: Will Taxable Entities Be The New Stealth Dark Money Campaign Organizations?, Donald B. Tobin

Faculty Scholarship

The electoral process in the United States is going through a major transition as money increasingly pours into non-candidate independent groups (“IGs”). Before 2000, IGs could engage in significant electoral advocacy without having to disclose the IG’s donors or its expenditures. Congress sought to address the lack of disclosure by requiring section 527 political organizations to disclose their contributions and expenditures. IGs quickly sought an alternative organizational form for engaging in political advocacy. The alternative organizational form of choice has been the tax-exempt section 501(c)(4) social welfare organization.

In a 2007 article, I explored whether such tax-exempt entities would be …

Standing Issues In Tax Litigation, Steve R. Johnson

Scholarly Publications

No abstract provided.

Professors Do Not Provide Childs Support, Gregg D. Polsky, Brant J. Hellwig

Scholarly Articles

In "Structuring Legal Fees Without Annuities: Offspring of Childs," Tax Notes, July 20, 2015, p. 341 , Robert W. Wood argues that Childs v. Commissioner, 103 T.C. 634 (1994), provides tremendous investment flexibility for plaintiffs' lawyers who choose to invest their contingent fees in tax-favored structured attorney fee products. Likewise, Gerald Nowotny has recently noted that the Childs case allows those lawyers to invest their contingent fees in private placement variable annuities.

We agree with Wood and Nowotny. In fact, the reasoning of Childs would allow any taxpayer in any industry to use similar vehicles to invest items of …

Transforming Federal And State Retirement Tax Deductions To Refundable Tax Credits, Teresa Ghilarducci, Ismael Cid-Martinez

Marquette Benefits and Social Welfare Law Review

The purpose of this Study is to calculate retirement account tax expenditures by states. States with income taxes that allow tax deferral of retirement account contributions and investment earnings lose nearly $20 billion in revenue. This Study uses a variety of data sources, including state reports from their executive agencies and known estimation techniques to calculate the amount of tax credits that a worker in each state would receive if the deferrals were converted to a refundable tax credit. The average credit under these estimation techniques and calculations would be $172.

Introduction To Worker Cooperatives And Their Role In The Changing Economy, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This article advocates for cooperatives as a vehicle for protecting and empowering vulnerable workers, like those in New York’s nail salons. Some may argue that worker cooperatives are unnecessary and that advocacy groups and legislation would be just as effective. California has a nonprofit, the California Healthy Nail Salon Collaborative (CHNSC), which is dedicated to advocating for healthy working conditions for nail workers. The organization is composed of key stakeholders in the nail salon industry, including individual manicurists, environmental organizations, researchers, reproductive justice groups, and government agencies. CHNSC created a “healthy nail salon” certification as an incentive for owners to …

Clean Energy Federalism, Felix Mormann

Articles

Legal scholarship tends to approach the law and policy of clean energy from an environmental law perspective. As hydraulic fracturing, renewable energy integration, nuclear reactor (re)licensing, transport biofuel mandates, and other energy issues have pushed to the forefront of the environmental law debate, clean energy law has begun to emancipate itself. The emerging literature on clean energy federalism is a symptom of this emancipation. This Article adds to that literature by offering two case studies, a novel model for policy integration, and theoretical insights to elucidate the relationship between environmental federalism and clean energy federalism.

Renewable portfolio standards and feed-in …

Classifying Federal Taxes For Constitutional Purposes, Evgeny Magidenko

University of Baltimore Law Review

In 2012, ruling on a challenge to President Obama’s landmark healthcare legislation, the Supreme Court upheld the legislation’s individual mandate penalty as a tax. The Court’s decision relied in part on the finding that the penalty was not a direct tax and so its lack of apportionment was not fatal. This was the first Supreme Court case in decades to address direct taxes, but regrettably it provided only a cursory examination of the subject. It did, however, serve as a useful reminder that the constitutional analysis of taxes is not a foregone conclusion and confirmed that there is a tenable …

A Simpler Verifiable Gift Tax, Wendy G. Gerzog

All Faculty Scholarship

The purpose of this article is to propose a simpler verifiable gift tax, to reassert basic principles of transfer taxes, to encourage simple, outright gifts, and to eliminate some of the major abuses in the current gift tax regime. To accomplish these goals, the proposed tax would simplify gift completion rules, adopt a hard-to-complete rule of transfer taxation, reduce the annual exclusion while expanding the consumption exclusion, and employ loss of preference inducements to increase gift tax compliance.

For Better And Worse: The Differing Income Tax Treatments Of Marriage At Different Income Levels, Lawrence A. Zelenak

Faculty Scholarship

Although both marriage penalties and marriage bonuses exist at all income levels under the federal income tax, the system is tilted toward penalties for lower-income couples, toward bonuses for middle-income couples, and back toward penalties for upper income couples. This Article begins by explaining how the tax rules produce these differing treatments of marriage at different points in the income distribution. It then argues that the increase in recent decades in the social acceptability and prevalence of cohabitation makes tax marriage effects a more serious concern--in terms of both behavioral, effects and fairness-than in earlier decades. After demonstrating that Congress …

King V. Burwell: What Does It Portend For Chevron's Domain?, Leandra Lederman, Joseph C. Dugan

Articles by Maurer Faculty

In King v. Burwell, the U.S. Supreme Court affirmed the Fourth Circuit’s decision, upholding regulations that extend the Premium Tax Credit (the Credit) to qualifying taxpayers who purchase health insurance on the Internet-based “Marketplace” operated by the federal Department of Health and Human Services (HHS), despite statutory language extending the subsidy to individuals who purchase through “an Exchange established by the State.” This was the second time in just three years that the Roberts Court engaged in what one critic called “linguistic acrobatics” that rescued President Obama’s signature healthcare law, the Affordable Care Act (ACA)—or, as Justice Scalia …

Structural Tax Exceptionalism, James M. Puckett

Georgia Law Review

Following the Supreme Court's landmark decision in Mayo Foundation for Medical Education and Research v. United States, many scholars of tax law have declared that Mayo marks the death of tax exceptionalism. The tax exceptionalist view holds that because tax is different or special, generally applicable administrative law procedural rules and doctrines do not apply in the tax context. In Mayo, however, the Supreme Court held that generally applicable administrative law rules and doctrines do apply to the Treasury Department and the IRS. Contrary to the prevailing narrative that proclaims the death of tax exceptionalism, this Article posits that the …

Dodging The Taxman: Why The Treasury’S Anti-Abuse Regulation Is Unconstitutional, Linda D. Jellum

Articles

To combat abusive tax shelters, the Department of the Treasury promulgated a general anti-abuse regulation applicable to all of subchapter K of the Internal Revenue Code of 1986. The Treasury targeted subchapter K because unique aspects of the partnership tax laws—including its aggregate-entity dichotomy—foster creative tax manipulation. In the anti-abuse regulation, the Treasury attempted to “codify” existing judicially- created anti-abuse doctrines, such as the business-purpose and economic-substance doctrines. Also, and more surprisingly, the Treasury directed those applying subchapter K to use a purposivist approach to interpretation and to reject textualism. In this article, I demonstrate that the Treasury exceeded both …

Online Data Breaches, Standing, And The Third-Party Doctrine, Adam Lamparello

Cardozo Law Review de•novo

This Essay argues that, in the context of online data breaches, these doctrines hinder consumers from receiving full monetary compensation and do not adequately safeguard privacy rights. For example, courts frequently dismiss consumers’ suits against online service providers for lack of standing, which results in consumers bearing the cost for damages that the providers were in a position to prevent. This Essay argues that the Supreme Court should relax the standing doctrine’s “imminent harm” requirement and permit consumers to sue providers for mitigation damages. In addition, the Court should abandon the longstanding principle that citizens lose all privacy protections in …

The Rescission Doctrine: Everything Old Is New Again, Allen Sparkman

American University Business Law Review

No abstract provided.

The Rise And Fall Of Chevron In Tax: From The Early Days To King And Beyond, Steve R. Johnson

Scholarly Publications

No abstract provided.

The Estate Planner's Income Tax Playbook, Samuel A. Donaldson

Faculty Publications By Year

No abstract provided.

The Case For Taxing (All Of) Labor Income, Consumption, Capital Income, And Wealth, David Gamage

Articles by Maurer Faculty

Perhaps the most fundamental questions in tax legal scholarship concern debates about what should be the ideal tax base or tax bases. In particular, scholars have vigorously disagreed about (1) whether the United States should follow other developed countries in supplementing its income tax with a value-added consumption tax, and (2) whether governments should seek to tax capital income and wealth or should instead seek to redesign or replace income taxes with progressive consumption taxes.

The prior economics-oriented theoretical literature on these questions has largely focused on analyzing labor supply and savings behaviors. Yet the existing empirical literature does not …

Prompt On The King V. Burwell Case, David Gamage

Articles by Maurer Faculty

Once again, the U.S. Supreme Court will be deciding the fate of Obamacare — in the case of King v. Burwell. Also, once again, the future of American healthcare reform will turn on how the Supreme Court reviews a provision of Obamacare that was enacted through the tax code.

So far, the debates over King v. Burwell have largely focused on Constitutional law, Administrative law, and other non-tax-law considerations. Might there be unique tax law perspectives that could be brought in to better illuminate these debates? Does it matter that the provision being reviewed (I.R.C. Sec. 36B) was enacted through …

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Taxes, The Problem And Solution: A Model For Vanishing Deductions And Exclusions For Residence-Based Tax Preferences, Phyllis C. Taite

NYLS Law Review

No abstract provided.

Book Review. Reviving Fiscal Citizenship, Ajay K. Mehrotra

Articles by Maurer Faculty

In recent years, numerous lawmakers, policy analysts, and scholars have been decrying the many defects of the present U.S. income tax system. Few have attempted to defend our return-based mass income tax. This essay reviews Learning to Love Form 1040, Lawrence Zelenak’s stirring and persuasive defense of a simplified version of our present federal income tax system. In contrast to the conventional economic critiques, Zelenak explores the underappreciated social, cultural, and political benefits of a return-based, mass income tax. Chief among these, he argues, is the existing regime’s potential to raise the tax consciousness of the average citizen and to …

Cancellation Of Debt And Related Transactions, Douglas A. Kahn, Jeffrey H. Kahn

Articles

If a taxpayer borrows money, the borrowed funds are not included in the taxpayer's gross income. That treatment is proper even though the taxpayer has increased his assets by the amount he borrowed because he also has created a corresponding liability to pay back the loan. The taxpayer's net: wealth has not increased. 'The more difficult and interesting questions arise when the taxpayer fails to repay the loan. At first blush, it would appear that upon cancellation of a loan, the taxpayer should have income for the amount that was cancelled. However, the current tax treatment is not that simple. …

Who Invented The Single Tax Principle?: An Essay On The History Of Us Treaty Policy, Reuven S. Avi-Yonah

Articles

In 1997, I wrote an article on the international tax challenges posed by the then-nascent electronic commerce, in which I suggested that the international tax regime is based on two principles: the benefits principle and the single tax principle. The benefits principle states that active (business) income should be taxed primarily by the country of source, and passive (investment) income should be taxed primarily by the country of residence. This is the famous compromise reached by the four economists at the foundation of the regime in 1923 and is not particularly controversial. It is embodied in every one of the …

The Rise And Fall Of The Consumption Tax, Reuven S. Avi-Yonah

Articles

The year 1974 was an eventful one in U.S. history. For the first time, a president resigned under threat of impeachment. Watergate and the Vietnam War shook Americans’ faith in their government. The economy was reeling from the first oil embargo, and the United States’ prospects seemed bleak. In that context, Professor William Andrews of Harvard Law School published an article that would revolutionize tax scholarship. Against the backdrop of widespread dissatisfaction with the government in general and the income tax in particular, Andrews suggested replacing the income tax with a consumption tax. That suggestion was ironic for anyone familiar …

(Elephant) Death And Taxes: Proposed Tax Treatment Of Illegal Ivory, Angela Ostrowski

Animal Law Review

African elephants are poached for their ivory at alarming rates. If the cur­rent level of poaching continues, it is projected they will be extinct from the wild in the year 2025. Preserving the African elephant species is important from an animal rights, conservation, ecological, economical, and crime pre­vention perspective. The current penalties and fines for the illegal trade in ivory are not enough of a deterrent. One method of deterrence that has not yet been explored is the imposition of tax consequences on the illegal ivory trade. This Article proposes a number of ways to use the tax system to …

Who Invented The Single Tax Principle?: An Essay On The History Of U.S. Treaty Policy, Reuven S. Avi-Yonah

NYLS Law Review

No abstract provided.