Tax Law Commons^™

Tax Delegation Post-Loper Bright, Reuven S. Avi-Yonah

Law & Economics Working Papers

In its recent decision in Loper Bright, the Supreme Court has fundamentally shifted the contours of judicial deference to administrative interpretations by repealing the Chevron doctrine. However, while the Court has curtailed deference, it simultaneously underscored the legitimacy of statutory delegation to agencies. The Internal Revenue Code (Code) is the most intricate legislative text within the U.S. legal framework, necessitating significant technical expertise for its application. It is, therefore, unsurprising that Congress often delegates authority to the IRS for the execution of the statute. In light of the Court's decision in Loper Bright, it becomes imperative to clarify the parameters …

The Triumph Of Tax Textualism, Reuven S. Avi-Yonah

Articles

In Varian Medical Systems, the Tax Court held in a unanimously reviewed opinion that the taxpayer was entitled to take a section 245A deduction for an amount treated as a dividend under section 78. Section 78 provides that deemed paid foreign taxes are treated as dividends received for foreign tax credit purposes, thus grossing up the amount of the dividend by the foreign taxes attributable to it before granting the FTC. This provision is needed because otherwise the taxpayer would enjoy both a deduction and a credit for the same foreign tax. Section 245A, however, eliminates the tax on the …

Looking Through Trusts, Adam S. Hofri, Mark Bennett

Osgoode Hall Law Journal

As everyone knows, trusts are often used to avoid or subvert different rules of law. To combat such avoidance, jurisdictions enacted anti-avoidance rules; yet many of these rules do not fully prevent trusts-based avoidance, or in some cases reflect some jurisdictions’ acceptance of such avoidance. We review the anti-avoidance rules applied by Canada, the US, the UK, Australia and New Zealand to try and stymie trusts-based avoidance in three subject areas: distribution of family property on divorce or separation, taxation of income accrued in settlor-controlled trusts, and means-tested eligibility for welfare benefits. We find that anti-avoidance doctrines are often less …

Tax Delegation After Loper Bright, Reuven S. Avi-Yonah

Articles

This paper examines the scope of the IRS and Treasury’s tax reg-writing authority after the Supreme Court’s decision in Loper Bright.

Challenging The Johnson Amendment: What Safe Space Gets Right - And Wrong, Benjamin Leff

Scholarly Articles in Law Reviews & Journals

There has long been a scholarly debate about the so-called Johnson Amendment, which is the statutory provision that prohibits charities from “intervening” in campaigns for public office. Some scholars argue that the Johnson Amendment, or at least the IRS’s interpretation of it, unconstitutionally prevents charities from exercising their fundamental rights to speech or religious liberty. Activists have tried to provoke IRS enforcement of the prohibition so they could argue their interpretation of the Constitution in court, but the IRS appeared to be avoiding litigation on the issue. On March 18, Students and Academics for Free Expression, Speech, and Political Action …

Tax In Law Schools, Michael Hatfield

Articles

At the 2023 Association of American Law Schools Tax Section meeting, professors discussed their impressions of a decline in the number of JD students studying tax. Their impressions were consistent with declines that have been documented in similar fields. Between 2011 and 2021, U.S. accounting programs saw an 18% drop in students, while new CPA candidates declined 39% from 2010 to 2022. In the United Kingdom, the number of law schools that teach tax has diminished by 43% since 2002. This Article examines tax education in 40 U.S. law schools, focusing on course offerings and enrollment trends from 2012 to …

The Fallacies Behind The Excise Tax On "Excessive" Charity Compensation, Elaine Waterhouse Wilson

Law Faculty Scholarship

This Article examines the fundamental flaws in Section 4960 of the Internal Revenue Code, which imposes an excise tax on nonprofit executive compensation exceeding $1 million. The provision, enacted as part of the 2017 Tax Cuts and Jobs Act, rests on three problematic fallacies. First, Congress incorrectly assumed that an excise tax on nonprofits would function equivalently to the elimination of a tax deduction for excessive compensation in the for-profit sector under Section 162(m). Second, lawmakers failed to recognize that nonprofits respond differently to tax incentives than for-profit entities due to their distinct governance structures and sensitivity to public opinion …

Taxing The Ten Percent, Alex Raskolnikov

Faculty Scholarship

The United States government is rapidly approaching the point when it will have no choice but to raise taxes. But whose taxes should go up, and why? The argument for higher taxes on the top one percent is well known. The case for higher taxes on the next nine percent is not. This Article makes that case.

Americans with incomes in the top ten percent but not the top one percent are not rich, but they are not middle class either—they are affluent. These affluent Americans have seen mostly tax cuts over the past three decades. Yet today, as progressive …

Basic Bankruptcy Training For General Tax Practitioners, Walter E. Afield, Robb Longman, Alexander E. Schmidt

Faculty Publications By Year

No abstract provided.

A Global Wealth Tax?, Reuven S. Avi-Yonah

Articles

Mitt Romney famously said during his 2012 presidential campaign that “corporations are people.” Mindy Herzfeld’s column comparing the proposed 2 percent global wealth tax on billionaires with the corporate minimum tax (pillar 2) raises the opposite question: Are people like corporations for tax purposes? I would say no, for several reasons.

The U.N. Framework Tax Convention: Can It Bridge The North-South Divide?, Assaf Harpaz

Scholarly Works

The United Nations recently concluded the second session of negotiations on terms of reference for a framework convention on international tax cooperation. The framework convention presents an opportunity to multilaterally address pressing global tax issues. Its goal is to “strengthen international tax cooperation and make it fully inclusive and more effective.” The extensively negotiated terms of reference make several substantive commitments, including the fair allocation of taxing rights; tax evasion and avoidance by high-net worth individuals; sustainable development; mutual administrative assistance in tax matters; tax-related illicit financial flows; and prevention and resolution of tax disputes. The ongoing multilateral effort brings …

The Contemporary Tax Journal’S Interview With Tony Coughlan, Enas J. Al-Mais

The Contemporary Tax Journal

No abstract provided.

The Contemporary Tax Journal Volume 13, No. 1 – Summer 2024

The Contemporary Tax Journal

No abstract provided.

Better Safe Than Sorry …. When The Lack Of Proper Tax Research Goes Wrong, Aizhan Toibazarova

The Contemporary Tax Journal

No abstract provided.

Does The Irs Have Statutory Authority To Assess Penalties Under Irc § 6038?, Jennifer Chang

The Contemporary Tax Journal

No abstract provided.

Navigating The Ins And Outs Of Amended Returns, Cheryl Cruz

The Contemporary Tax Journal

No abstract provided.

Taxation Of Decentralized Autonomous Organizations, Aizhan Toibazarova

The Contemporary Tax Journal

No abstract provided.

Uworld Review Questions

The Contemporary Tax Journal

No abstract provided.

Crypto And The Exit Tax, Reuven S. Avi-Yonah

Articles

Robert Goulder has devoted one of his excellent columns to the fascinating case of “Bitcoin Jesus.” As explained by Goulder:

Another billionaire was in the news recently for reasons that relate to taxation, although it’s doubtful he will be accused of much virtue. The man known internationally as “Bitcoin Jesus” got himself arrested in Spain on April 27. He now faces extradition to the United States, where an eight-count criminal tax indictment awaits him. Bitcoin Jesus is coming home.

This is a far cry from the Jesus born in Bethlehem who once said that it was easier for a camel …

Sourcing Derivatives: Time To Reverse The Rule?, Reuven S. Avi-Yonah

Articles

In their excellent Tax Notes article on the application of withholding taxes on derivatives, Lorenz F. Haselberger and Michael B. Shulman write that:

A taxpayer entering into a derivative may derive income of a kind that is different from the kind of income that would have been realized had the taxpayer instead acquired the underlying asset, resulting in different U.S. withholding tax treatment.

For example, when a foreign taxpayer enters into a swap referencing an equity security or interest rate, amounts it receives that correspond to dividends or interest generally are characterized as periodic payments on a financial contract rather …