Taxation-State and Local Commons^™

Analysis Of The Impacts Of Propositions 41 And 42 On California Public Finance, David Gamage, Brian D. Galle, Darien Shanske

Faculty Publications

This memorandum discusses the possible collateral damage that Propositions 41 and 42 (on the ballot in California on November 3, 2026) might cause.  The two propositions were concocted very quickly by billionaires in order to trick voters that will vote for Proposition 40 (the billionaire tax) also to vote for these propositions that are designed to undermine the billionaire tax.

The basic trick is that these propositions have plausible seeming veneers but hide a poison pill that aims to frustrate the functioning of the billionaire tax.  The veneers are “plausible seeming” because they address problems that are not problems.  For …

Formulary Apportionment: A New Framework For Personal Income Taxation, Andrew Appleby

Pepperdine Law Review

Increased post-pandemic remote working arrangements and interstate migration have upended existing personal income taxation regimes. For decades, the current paradigm has proved to be an imperfect but workable means to determine which state has the prevailing claim to impose tax on a particular item of income. The individual’s state of residence has a residual claim to all the individual’s worldwide income but defers to the state in which the income is derived if such a state is determinable. To that end, the state of residence typically provides a credit for income taxes paid on a source basis to other states. …

Money Moves: Taxing The Wealthy At The State Level, David Gamage, Brian D. Galle, Darien Shanske

Faculty Publications

It's widely understood today that inequality is a major social problem that in turn contributes to other crises. By most accounts, tax systems are supposed to be our engines of equality. Yet in today’s United States, state and local tax systems mostly do the opposite: they take a greater percentage of the resources of the poor and middle class than of the rich.

Perhaps surprisingly, the traditional view among fiscal policy experts has been that this state of affairs is correct. In this standard account, only national governments should impose progressive or redistributive taxes. While acknowledging that there would be …

Taxation's Limits, Luís C. Calderón Gómez

Northwestern University Law Review

Countless pages have been devoted to the question of why everyone should pay tax, yet its opposite has gone largely unnoticed: why should some people and organizations not pay tax? Our tax system exempts from ordinary income taxation a wide and diverse array of people and organizations engaged in significant economic activity—from parents providing childcare services for their family to consular activities and charities operating animal shelters—seemingly without a convincing explanation. Perhaps because of the dizzying diversity of tax-exempt activities, scholars and policymakers have avoided comprehensively or coherently justifying our exemption regimes.

This Article develops a novel normative theory that …

Unintended Consequences Of Fetal Personhood Statutes: Examples From Tax, Trusts, And Estates, Bridget J. Crawford, Alexis C. Borders, Katherine Keating

Elisabeth Haub School of Law Faculty Publications

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the …

The Original Meaning Of The Sixteenth Amendment, John R. Brooks, David Gamage

Faculty Scholarship

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property.

In this Article we argue—based on the …

A Proportionality Analysis Should Govern Home Rule Disputes, Darien Shanske, David A. Carrillo

Cardozo Law Review

Despite more than a century of reform, state constitutional law governing the state–local relationship remains unsatisfactory. Current doctrine governing intrastate federalism struggles with the same issues as the more familiar interstate federalism doctrine does: in both contexts courts have failed to choose between categorization and balancing. Two recent trends highlight this unsatisfactory pocket of state constitutional jurisprudence. One is hyperpreemption, where punitive state laws override local regulations and invade traditional zones of local police power. The other pressure point is the nationwide housing crisis, which provokes intrastate conflict when state governments act to preempt local zoning to permit more, denser, …

Mission Impossible? The Case For Municipal Tort Liability Reform In A Post-Valdez World, Shelley Wu

Cardozo Law Review

No abstract provided.

The Commerciality Of Non-Profit Hospitals Requires Them To Be Taxed: Bringing The Debate To A Conclusion, Edward A. Zelinsky

Articles

It is now time to conclude our prolonged debate about the tax-exempt status of nonprofit hospitals. The contemporary nonprofit hospital is a commercial enterprise, materially indistinguishable for tax purposes from its profit-making, taxed competitor. The federal income tax and the states’ income, sales and property taxes should treat all hospitals alike, regardless of whether such hospitals are nonprofit or for-profit enterprises. In the interests of equity and efficiency, these similar institutions should be taxed similarly.

As a political matter, nonprofit hospitals will continue to defend their tax-exempt status. Like any other lucrative, vested interest, nonprofit hospitals will continue to fight …

Pink Tax And Other Tropes, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Law reform advocates should be strategic in deploying tax tropes. Through an examination of five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—this Article demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative inequalities. In comparison, slogans describing figurative taxes are less likely to influence law and human behavior, even if they have descriptive force in both popular and academic literature as a short-hand for group-based disparities. This Article catalogues and evaluates what makes for effective tax …

Sb 146 - Amendments Regarding The Supply, Oversight, And Taxation Of Motor Fuel For Electric Vehicles, Margaret L. R. Dubose, Kyle R. Tau

Georgia State University Law Review

The Act amends and adds several Code sections related to the supply, oversight, and taxation of motor fuel in anticipation of increased use of electric vehicles on Georgia roadways.

Don't Ban The Bars: Why The South Carolina General Assembly Should Decline To Adopt A Revenue Requirement For Liquor Licenses, C. William Bootle Ii

South Carolina Law Review

No abstract provided.

A Framework For Understanding The Taxation Of Digital Tokens, Vincent Ooi

Research Collection Yong Pung How School Of Law

As a relatively new area, the taxation of digital tokens can give rise to several dangerous misconceptions. This article lays out five propositions to counter these misconceptions: 1) digital tokens are not a single monolithic asset class attracting uniform tax treatment; 2) the common trichotomous division of digital tokens into payment, utility and security tokens is derived from securities regulation and should not be blindly adopted into tax law; 3) the three classes are not mutually exclusive and hybrid tokens may exist; 4) the fact that an asset is a digital token rarely changes its tax treatment by itself, which …

Sb 361: Law Enforcement Strategic Support Act, Adenike Tijani, Adelarin Yemi-Sofumade

Georgia State University Law Review

This Act provides a new income tax credit for individuals, LLC members, partnership partners, and S-corporation shareholders ranging from $5,000-$10,000 for donations to law enforcement foundations, defined as domestic nonprofit corporations with the sole function of supporting local law enforcement units. The Act caps credits for all taxpayers at $75 million per year.

Reframing Taxigration In The Search For Tax Justice, Jacqueline Lainez Flanagan

Journal Articles

The Search for Tax Justice is a Tax Notes State series examining the inequities inherent in state and federal taxes. In this installment, Jacqueline Laínez Flanagan, associate professor of law and director of the University of the District of Columbia’s David A. Clarke School of Law Tax Clinic, discusses tax challenges faced by immigrants and responds to myths about the undocumented taxpayer community.

Marijuana Taxation: Theory And Practice, Benjamin Leff

Scholarly Articles in Law Reviews & Journals

Marijuana legalization creates a host of complex legal problems, not the least of which is how to best tax the emerging legal market. This Essay attempts to bridge the gap between tax theory and marijuana policy to make some modest claims. First, it roots the discussion of state-level marijuana taxation in the theoretical distinction between ordinary revenue-raising taxes and "Pigouvian" or regulatory taxes. It makes the somewhat controversial claim that the best taxing strategy for states is to attempt to capture as much of the marijuana legalization premium as possible without driving consumers into the illegal market and that other …

Decoupling State Income Tax From Federal: Current Taxation Of Unrealized Gain, The New York Proposal, Henry Ordower

All Faculty Scholarship

A proposal decouples NY from federal tax computations to tax billionaires on unrealized appreciation. If enacted, the proposal generates basis discontinuities across borders but enhances state revenue and may prove attractive to many states. The article reviews how states seek to enhance revenues and considers issues of cross-border taxation and the fundamental right to travel.

New York’S Proposed Mark-To-Market Tax Decouples From Federal Tax, Henry Ordower

All Faculty Scholarship

A proposal decouples NY from federal tax computations to tax billionaires on unrealized appreciation. If enacted, the proposal generates basis discontinuities across borders but enhances state revenue and may prove attractive to many states. The article reviews how states seek to enhance revenues and considers issues of cross-border taxation and the fundamental right to travel.

Into The "Vortex Of Legal Precision": Access To Justice, Complexity, And The Canadian Tax System, Colin Jackson

PhD Dissertations

This thesis is an exploration of access to justice issues in the Canadian tax system. Drawing on the work of Roderick Macdonald, it argues for a broad conception of access to justice based on the empowerment of individuals in all of the sites, processes, institutions where law is made, administered, and applied. It argues that tax law shows the usefulness of this comprehensive approach to access to justice. Using the comprehensive approach to access to justice, the thesis goes on to argue that legal complexity should be seen as an important access to justice issue in tax law. It lays …

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review (2017-Present)

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states. While the …

Law School News: Remembering Rwu Laws Founding Dean 9-10-2019, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Taxation And Reducing Recidivism: A Legal Comparative Analysis Of Reducing Recidivism In States And A Federal Solution For The Future, Israel X. Nery, Scott B. Astrada

University of the District of Columbia Law Review

In this article, we will focus on employer-based tax incentives for hiring ex-offenders. Central to the discussion will be the Work Opportunity Tax Credit ("WOTC"), which provides a tax credit to employers who hire qualified employees/ex-offenders under the program. Additionally, we will explore various state programs modeled on a tax-based incentive and conduct a comparative assessment of where federal and state programs are effective and where there is potential for reform. Without targeted policy solutions to address employment obstacles, ex-offenders are left facing persistent employment barriers as they attempt to return to their communities and start a new life after …

U.S. Tax Reform: Considerations For Service Members [Notes], Kan Samuel

Faculty Scholarship

No abstract provided.

Shining A Light On Tax Avoidance, Hern Kuan Liu, Vincent Ooi

Research Collection Yong Pung How School Of Law

Tax avoidance is a technical legal term which has a precise meaning in law. This can be compared to the more general term of "tax dodging", which has no such technical legal meaning. In light of this, we think it might be useful to explain the concept of tax avoidance.

The Federal Arbitration Act And Independent Contractors, Richard Frankel

Cardozo Law Review de•novo

The misclassification of employees as independent contractors is one of the most serious problems affecting the American workforce. It deprives workers of important employee benefits, civil rights, and wage and hour protections, and deprives the federal and state governments of billions of dollars in tax revenue annually. While workers can seek redress in the courts, businesses are trying to take away that right as well by forcing workers to submit their disputes to binding mandatory arbitration under the Federal Arbitration Act (FAA). Section 1 of the FAA, however, creates an exemption for transportation workers, stating that “nothing herein contained shall …

Questioning Quill, Hayes R. Holderness

Law Faculty Publications

The physical presence rule of Quill Corp. v. North Dakota is under increasing attack from the “Kill Quill” movement — a consortium of state tax administrators, industry leaders, and academics opposed to the decision. The physical presence rule prohibits states from requiring many out-of-state vendors to collect taxes on goods sold into the states. Kill Quill states have grown increasingly aggressive, and litigation is well underway in South Dakota and Alabama over those states’ direct disregard for the rule. As a petition to the Supreme Court for certiorari grows closer, the case for overturning the physical presence rule remains cloudy. …

Tax Policy Reform: Issues To Be Addressed To The Benefit Of All Missourians, Joel Walters

The Business, Entrepreneurship & Tax Law Review

Tax policy impacts the everday decisions made by individuals, families, and businesses. Better tax policy can generate economic activity and lower the tax burden on individual taxpayers. Missouri Department of Revenue Director, Joel Walters, believes the current Missouri tax system can be changed in ways that would make it more simple, efficient, and fair. With this article, Director Walters seeks to engage Missourians in a dialogue about the strengths and weaknesses of the current tax policy environment in Missouri. The article comprhensively examines Missouri's tax system by discussing a wide variety of topics including corporate income tax, alternatives such as …

Taxation, Craig D. Bell

University of Richmond Law Review

This article reviews significant recent developments in the laws

affecting Virginia state and local taxation. Each section covers

legislative activity, judicial decisions, and selected opinions or

pronouncements from the Virginia Tax Department (the "Tax

Department") and the Virginia Attorney General over the past

year.

Taxation And Doing Business In Indian Country, Erik M. Jensen

Maine Law Review

Economic development on the lands of the American Indian nations has been spotty at best. Almost everyone knows the great success stories with Indian gaming, which has been furthered by federal legislation, but those economic benefits have not been felt uniformly. Some tribes have prospered because of this peculiarly favored form of enterprise; others have not and, in many cases, probably cannot. Substantial economic development in Indian country will not occur without significant infusions of outside capital, but investment by non-Indian and nongovernmental sources is risky, or is perceived to be so, which leads to the same practical result. This …

A Progressive Federal Tax Credit For State Tax Payments, Eric Kades

Popular Media

No abstract provided.