Taxation-State and Local Commons^™

Obamacare And The 'What Is A Tax?' Issue – Part I, Steve R. Johnson

Scholarly Publications

One of the hardiest perennials in the garden of state and local tax issues is the question whether particular revenue measures should be classified as taxes or some other type of exaction. The issue has been dispositive in numerous state and local tax cases and, befitting that significance, has been the topic of many reports in this journal.

Given the frequency of the decisions and commentary, authorities cited on the issue constantly evolve. State courts, omnivorous in their search for precedents and rationales, often cite federal cases. Recognizing this, a recent article in State Tax Notes examined decisions of the …

Fair For Whom? Amazon Kindles The Fight Over Internet Sales Tax, 46 J. Marshall L. Rev. 357 (2012), Matthew Martin

UIC Law Review

No abstract provided.

The Health Care Cases And The New Meaning Of Commandeering, Bradley W. Joondeph

Patient Protection and Affordable Care Act Litigation

The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (or ACA) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant as a matter of constitutional law.

The basic thesis of this article is that, in finding the ACA’s Medicaid expansion provisions coercive, the Court has re-conceptualized what constitutes a …

Chopping Down The Rainforest: Finding A Solution To The "Amazon Problem", Eric Andrew Felleman

University of Michigan Journal of Law Reform Caveat

Current economic conditions in the United States have led to a dramatic decrease in state tax revenue. Without these funds, states will be unable to support important public services, and hundreds of thousands of jobs in the public and private sectors are at risk of being cut, as states work to close $103 billion in budget gaps. Accomplishing that will involve overcoming many hurdles, such as the unpopularity of raising taxes during times of economic trouble, but one largely untapped source could provide a significant amount of income to states. States currently lose around $23 billion annually in uncollected use …

The Commonwealth Of Pennsylvania's Antiquated And Oft-Abused Occupation Tax: A Call For Abolition, Edmund W. Appleton

University of Michigan Journal of Law Reform Caveat

Under Pennsylvania law, counties, cities, boroughs, first-class townships, municipalities, and school districts can levy an occupation tax. An occupation tax taxes an individual based on the individual’s occupation, which, historically, was considered to be a form of transferable property. Not only is the occupation tax based on an outdated model of employment practices, but it is also a source of abuse and inequity. Consequently, the occupation tax should be abolished in favor of other more just taxation models.

A Better Way Forward For State Taxation Of E-Commerce, David Gamage, Devin J. Heckman

Articles by Maurer Faculty

We propose a novel solution for states that wish to tax interstate e-commerce – based on fully and adequately compensating remote vendors for all tax compliance costs. We argue that our proposed solution is compatible with the Quill framework for when states can constitutionally impose burdens on remote vendors. We argue that unlike our proposed solution, the recent state attempts to tax interstate e-commerce through so-called “Amazon laws” are unconstitutional, ineffective, or both. We thus urge the states to adopt our proposed approach as the best way forward for state taxation of interstate e-commerce.

Vendor Compensation As An Approach For State "Amazon" Laws: Part 2, David Gamage, Devin J. Heckman

Articles by Maurer Faculty

In this essay, the second of a two-part series, we propose an approach for the U.S. states to tax interstate e-commerce. If the states adequately compensate remote e-commerce vendors for all tax compliance costs, we argue that the states can constitutionally impose use tax collection obligations on the remote vendors in a manner compatible with the Quill framework.

The Saga Of State "Amazon" Laws: Reflections On The Colorado Decision, David Gamage, Darien Shanske

Articles by Maurer Faculty

We analyze the Colorado district court’s decision in Direct Marketing Association v. Huber – a decision that permanently enjoined Colorado’s "Amazon" law. Had it not been enjoined, the Colorado law would have mandated information reporting by remote e-commerce vendors so that Colorado could levy its sales and use tax on the e-commerce purchases made by Colorado residents. We evaluate the applicability of the Tax (Anti-)Injunction Act and whether the Colorado statute and regulations should be reviewed as a tax or as a regulation. We also suggest alternative approaches that state legislatures might use in order to levy taxes on remote …

Vendor Compensation As An Approach For State "Amazon" Laws: Part 1, David Gamage, Devin J. Heckman

Articles by Maurer Faculty

In this Essay, the first of a two-part series, we analyze the approaches U.S. states have been using in their attempts to tax interstate e-commerce. We argue that these existing approaches are unlikely to be effective. In our companion Essay, the second in the series, we outline a novel approach that states might employ in order to more effectively tax interstate e-commerce – based on adequately compensating remote vendors for all tax compliance costs. But before we can argue for our new approach, we must first survey the current constitutional and statutory landscape.

On Tax Increase Limitations: Part Ii -- Evasion And Transcendence, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this essay, the second of a series, we continue our evaluation of state Tax Increase Limitations (TILs) – special rules that limit state legislatures’ ability to raise taxes, such as by requiring supermajority votes. We analyze two strategies whereby majority parties can evade TILs to the extent they so desire. We further argue that these strategies have some positive normative features. The strategies designed to evade TILs may ultimately lead toward a more effective means for controlling the size of state government than TILs themselves are able to provide.

Common Sense And The Commerce Clause: Why Elimination Of The Physical Presence Test For Taxation Defies Both, Lucas Humble

Kentucky Law Journal

No abstract provided.

Every Cloud Has A Silver Lining: The Potential Sales And Use Taxation Of Cloud Computing, Annmarie Dennehy

Student Works

No abstract provided.

Nonprofits, Politics, And Privacy, Lloyd Hitoshi Mayer

Journal Articles

The first Part of this Article briefly reviews and contrasts the history and current rules governing disclosure and privacy in the federal tax, federal tax exemption, and federal election law contexts. This review reveals that both the cost-benefit approach and the right-to-privacy approach can be found in this history, but to a greater or lesser extent depending on the context. The second Part explores these two different approaches and the extent to which the existing disclosure rules reflect those approaches. This Part shows that the rules are sometimes but not always based both on the cost-benefit approach to disclosure, in …

New York Tax Warrants: In The Strange World Of Deemed Judgments, David G. Carlson

Articles

No abstract provided.

State Economic Development Policies: What Works?, Timothy J. Bartik

Presentations

No abstract provided.

Going Big: Update On States Seeking To Expand Tax Jurisdiction, Tax Base And Enforcement, Jeffrey A. Friedman, Richard Pomp

William & Mary Annual Tax Conference

No abstract provided.

Recent Developments In Virginia Taxation, Craig D. Bell, William L.S. Rowe

William & Mary Annual Tax Conference

No abstract provided.

Fiscal Federalism In The United States, Walter Hellerstein

Presentations and Speeches

This presentation explores the fiscal powers of U.S. Federal and State governments with respect to taxation and spending.

Designing A More Efficient And Fairer Tax System, Singapore Management University

Perspectives@SMU

“In this world, nothing can be said to be certain, except death and taxes,” Benjamin Franklin had once famously said. The founding father of the United States was convinced, some 200 years ago, of the importance of tax design on modern economies. Today, as more politicians and governments struggle to address fiscal deficits and income inequality through taxation, it has never been more important to get tax structures right.

Local Government Law, Andrew R. Mcroberts

University of Richmond Law Review

No abstract provided.

Taxes, Free Expression, And Adult Entertainment, Steve R. Johnson

Scholarly Publications

The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commi …

An Industry-Specific Vat In Michigan - Objective Valuation In The Retail Gasoline Trade, Richard Thompson Ainsworth

Faculty Scholarship

New York adopted an industry-specific value added tax (VAT) to solve problems with virtual intermediaries (room remarketers) under its hotel accommodations tax. The New York VAT resembles the VAT used in the European Union (EU). It is a credit-invoice VAT that subjectively values supplies.

Michigan has also adopted an industry-specific credit-invoice VAT, however the targeted industry is the retail gasoline trade. The valuation method is objective, rather than subjective. In valuing supplies objectively rather than subjectively, the Michigan VAT resembles the exception provisions that are found in most VATs around the globe. Objective valuations are used in VATs when dealing …

Technology Solves Mtic - Vln, Rtvat, D-Vat Certification, Richard Thompson Ainsworth

Faculty Scholarship

Technology solves missing trader intra-community (MTIC) fraud. This should come as no surprise. MTIC is technology-intensive fraud – its solution should also be technology-intensive.

MTIC is getting to be an out-dated term. Now that missing trader fraud has move into services it is no longer confined to intra-community trade, and the older acronym should be adjusted to MTIC/MTEC fraud (with MTEC standing for missing trader extra-community).

MTIC/MTEC fraud is fully digitized (the supply, the movement of the supply, and the funding). The consequences should be clear. MTIC/MTEC must be prevented (before the fact), not pursued (after the fact). In the …

Presentation On Early Childhood Programs And Economic Development To American Chamber Of Commerce Executives Convention, Timothy J. Bartik

Presentations

No abstract provided.

New Light On Auer/Seminole Rock Deference, Steve R. Johnson

Scholarly Publications

We have been engaged in an extended exploration of doctrines under which courts may defer to positions and interpretations by state and local tax agencies. The immediately prior installment of this column discusses such deference under state equivalents of what is known as the Auer or Seminole Rock principle, under which courts usually defer to agency interpretations of the agencies’ own ambiguous regulations.

About two weeks after the publication of that installment, the U.S. Supreme Court handed down a major new decision on the Auer principle: Talk America, Inc. v. Michigan Bell Telephone Co. Talk America bids fair to be …

New York Adopts A Vat, Richard Thompson Ainsworth

Faculty Scholarship

On August 13, 2010 the New York State Department of Taxation and Finance, Office of Tax Policy Analysis, Taxpayer Guidance Division released Amendments Affecting the Application of Sales Tax to Rent Received for Hotel Occupancy by Room Remarketers. The legislative revision it considers (Chapter 57 of the Laws of 2010) was effective September 1, 2010. The changes brought in by this Chapter effectively converted New York’s Hotel Room Occupancy Tax from a single-stage retail sales tax to multi-stage European-style VAT. This paper considers the New York VAT in hotel accommodations in three sections. The first defines a European-style credit-invoice VAT …

Responding To Skeptics Of Early Childhood Programs As Local Economic Development, Timothy J. Bartik

Presentations

No abstract provided.

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

The Contemporary Tax Journal

No abstract provided.

Summaries From The Tei-Sjsu Tax Policy Conference-- The State Of Tax Policy In California, Linda Yung, Tim Kelly, Sylvia Han, Vuong Luong, Brian Ross, Zhi Jun Lim, Victoria Lau

The Contemporary Tax Journal

No abstract provided.

Deference To Tax Agencies' Interpretation Of Their Regulations, Steve R. Johnson

Scholarly Publications

This installment closes a loop begun in the last installment of this column. We have been exploring the degrees of deference accorded by the courts to interpretations and positions taken by state and local revenue agencies. The last installment examined conditional deference doctrines, that is, deference specific to particular situations or conditioned on the existence of particular conditions. That installment noted one line of conditional deference, applying to cases in which agencies are interpreting their own regulations. This is often called Auer deference, after one of the most prominent cases of the line. Because of the richness of the Auer …