Tax Law Commons^™

Sticky Copyrights: Discriminatory Tax Restraints On The Transfer Of Intellectual Property, Bridget J. Crawford, Mitchell M. Gans

Washington and Lee Law Review

This Article focuses on the federal estate and gift tax treatment of copyright termination rights. The ability of a creative individual to terminate prior copyright transfers serves to protect against economic exploitation. Once a copyright's value has been established in the marketplace, the author (or the author's heirs) enjoys a "second look" at the gi, sale, license or other transfer of a copyright. But copyright termination rights-intended to enhance the economic well-being of authors and artists-undermine estate planning strategies available to owners of other types of property. There is no policy justification for such discrimination, and so this Article proposes …

Zakat: Drawing Insights For Legal Theory And Economic Policy From Islamic Jurisprudence, Russell Powell

Faculty Articles

The rapid development of complex income taxation and welfare systems in the 20th century may give the impression that progressive wealth redistribution systems are uniquely modern. However, religious systems provided similar mechanisms for addressing economic injustice and poverty alleviation centuries earlier. Zakat is the obligation of almsgiving and is the third pillar of Islam - a requirement for all believers. In the early development of the Islamic community, zakat was collected as a tax by the state and the funds were distributed to a defined set of needy groups. As a theoretical matter, there are three insights that make zakat …

Gambling Taxes: The Philosophy, The Constitution And Horizontal Equity, William N. Thompson

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Integrating Iras With Snts, Thomas Simmons

Faculty Publications

What happens when a client's IRA (or qualified retirement plan) names a third party supplemental needs trust (SNT) as a beneficiary? From a tax perspective, the result might not be pretty. The difficulty in integrating an SNT with an IRA lies in the "see through trust" rules which must be observed in order to qualify for beneficial income tax treatment.

Comments: "Simplification" Is Not Enough: An Analysis Of The Home Office Tax Deduction And The Home Office Simplification Act Of 2009, Lauren Marini

University of Baltimore Law Review

No abstract provided.

Residual-Risk Model For Classifying Business Arrangements, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Keep Charity Charitable, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article responds to recent claims, most prominently by Anup Malani, Eric Posner, and Todd Henderson, that much of the work of the charitable sector should be farmed out to for-profit firms. For-profit firms are said to be more efficient because they can offer high-powered incentives to cut costs. I argue, however, that because of the high costs of monitoring and the presence of externalities, low-powered incentives are preferable for firms that produce public goods, as most charities do. Further, allowing some for-profit firms to receive charitable subsidies would raise the cost of producing those goods in government or other …

Sovereignty, Integration And Tax Avoidance In The European Union: Striking The Proper Balance, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

As the need to raise revenue becomes more pressing and public opposition to tax avoidance increases, the European Court of Justice has made it more difficult for the twenty-seven Member States of the European Union to prevent tax avoidance and shape fiscal policy. This article introduces the new anti-avoidance doctrine of the European Court of Justice and analyzes it from the perspective of taxpayers, Member States and the European Union legal order as a whole. This doctrine is problematic becasue it has created a legislative vacuum in Europe. No European Union institution has the authority to regulate direct taxation without …

Is Local Consumer Protection Law A Better Retributive Mechanism Than The Tax System, Brian Galle

Georgetown Law Faculty Publications and Other Works

As Judge Calabresi has argued, preemption decisions are, at their core, a choice about which tier of government should have policy-making authority. In prior work, Mark Seidenfeld and I argued that the choice of whether or not to preempt state law decisions should be based explicitly on "fiscal federalism" considerations. The economic discipline of fiscal federalism attempts to measure the welfare effects of situating a given policy either locally, nationally, or somewhere in between.

Reply To Becker And Fuest, James R. Hines Jr.

Articles

It is an understatement to say that the appropriate taxation of foreign business income is a controversial and potentially confusing topic. One of the mysteries of international taxation has been that the prescriptions of what, until recently, was the accepted academic wisdom differs so sharply from widespread international practice. In an important contribution, Richman (1963) noted that a home government confronted with the choice of where it would prefer one of its resident taxpayers to allocate a single unit of capital would weigh the after-foreign-tax return from investing abroad against the pre-tax return from investing at home. From this observation, …

The Most Popular Tool: Tax Increment Financing And The Political Economy Of Local Government, Richard Briffault

Faculty Scholarship

Tax increment financing (TIF) is the most widely used local government program for financing economic development in the United States, but the proliferation of TIF is puzzling. TIF was originally created to support urban renewal programs and was narrowly focused on addressing urban blight, yet now it is used in areas that are plainly unblighted. TIF brings in no outside money and provides no new revenue-raising authority. There is little clear evidence that TIF has done much to help the municipalities that use it, and it is also a source of intergovernmental tension and a site of conflict over the …

The Anticipation Misconception, Colin P. Marks

Faculty Works

Many commentators and courts have cited to the Supreme Court decision of Hickman v. Taylor as the genesis of the work product doctrine and the requirement that, to be afforded protection, the material in question must be generated “in anticipation of litigation.” The oft quoted policy justification for the protection afforded is that attorneys should be allowed a “zone of privacy” within which to prepare their case for the client. This justification supports limiting protection only to work generated “in anticipation of litigation,” because, presumably, outside of this context there is no need for the “zone of privacy.” However, a …

Sovereignty, Integration, And Tax Avoidance In The European Union: Striking The Proper Balance, Lilian Faulhaber

Faculty Scholarship

As the need to raise revenue becomes more pressing and public opposition to tax avoidance increases, the European Court of Justice has made it more difficult for the twenty-seven Member States of the European Union to prevent tax avoidance and shape fiscal policy. This article introduces the new anti-avoidance doctrine of the European Court of Justice and analyzes it from the perspective of taxpayers, Member States and the European Union legal order as a whole. This doctrine is problematic becasue it has created a legislative vacuum in Europe. No European Union institution has the authority to regulate direct taxation without …

Establishment': A Core Concept In Chinese Inbound Income Taxation, Wei Cui

All Faculty Publications

Analogous with the concept of a US "trade or business" in US federal income tax law, the concept of "establishment" under Chinese tax law determines the boundary between net-income and gross-income taxation of inbound investments. As central as the concept is, it has received surprisingly little interpretation. As China increasingly opens to foreign portfolio investment and makes new non-corporate business forms available to foreigners, the term is urgently in need of clarification. This Article describes the recent regulatory and commercial developments in China that may rekindle interest in elaborating the meaning of "establishment." It then discusses the interpretations that have …

Assessing The Following Systems For Taxing Foreign-Source Active Business Income: Deferral, Exemption, And Imputation, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

The False Modesty Of Department Of Revenue V. Davis: Disrupting The Dormant Commerce Clause Through The Traditional Public Function Doctrine, Edward A. Zelinsky

Articles

No abstract provided.

Legal Transitions And The Problem Of Reliance, David M. Hasen

Publications

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …

Tax Fraud In The Sales Tax: Zappers — What Are They? How Can Puerto Rico Block Them?, Richard Thompson Ainsworth

Faculty Scholarship

The Sales and Use Tax is an essential part of Puerto Rico’s revenue profile. Effective only recently (November 15, 2006) the Impuesto a las Ventas y Uso (IVU) was expected to raise between $2.3 and $1.05 billion annually, and has already become the Commonwealth’s fourth largest revenue source. Actual revenue results for 2007-2008 came in at $1.1 billion, which admittedly is closer to the low end than the high end of what is possible, but now that the tax is in place the next pressing question is how can its performance be improved?

This paper generally proposes that Puerto Rico …

Much Uncertainty About Uncertain Tax Positions, Robert D. Probasco

Faculty Scholarship

The Internal Revenue Service (IRS) announced in January 2010 a new initiative to require certain businesses to report “uncertain tax positions” on a new schedule filed with their annual tax returns. Draft schedules and instructions issued in April 2010 clarified some of the mechanical aspects of the new requirement but left many open issues and questions. The IRS proposal built on requirements by the Financial Accounting Standards Board (FASB) in FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (“FIN 48”). The standard requires companies, in their financial statements, to reserve some of the benefits from any position taken …

A Primer On Protecting Tax Losses From A Section 382 Ownership Change, Mark C. Van Deusen

William & Mary Annual Tax Conference

No abstract provided.