Tax Law Commons^™

Stanley Surrey, The Code And The Regime, Reuven S. Avi-Yonah, Nir Fishbien

Articles

Stanley Surrey (1910-1984) was arguably the most important tax scholar of his generation. Surrey was a rare combination of an academic (Berkeley and Harvard law schools, 1947-1961 and 1969-1981) and a government official (Tax Legislative Counsel, 1942-1947; Assistant Secretary for Tax Policy, 1961-1969). Today he is mostly remembered for inventing the concept of tax expenditures and the tax expenditure budget. This paper will argue that while Surrey was influential in shaping domestic tax policy for a generation and had an impact after his death on the Tax Reform Act of 1986, his longest lasting contributions were in shaping the international …

Stanley Surrey, The 1981 Us Model, And The Single Tax Principle, Reuven S. Avi-Yonah

Articles

2021 marks the fortieth anniversary of the 1981 US Model Tax Treaty as well as the fifth anniversary of the 2016 US Model Tax Treaty. The first author has repeatedly argued that the 1981 Model gave life to the single tax principle (‘STP’). The 2016 Model updates effectively implemented the principle that cross-border income should be taxed once – that is not more and but also not less than once. For example, the 2016 Model does not reduce withholding taxes on payments of highly mobile income that are made to related persons that enjoy low or no taxation with respect …

Taxing Parents: Welfarist Theories, Shannon Mccormack

Articles

The Internal Revenue Code (the "Code") taxes parents inequitably. Couples with a sole earner are undertaxed compared to couples with dual earners and to single parents. Legal tax scholarship (including my own) has identified the many inequities that result from this sole-earner bias and have called for its elimination. But while these arguments have been sufficient for some, they do remain susceptible to the criticism that they are theoretically incomplete.

That critique might proceed as follows. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, it might be argued, the Code plays …

Fictitiously Overstating Taxable Income, Stanley Veliotis

University of San Francisco Law Review

No abstract provided.

Does Tax Matter? Evidence On Executive Compensation After 162(M)'S Repeal, Andrew Lund, Brian Galle, Gregg D. Polsky

Faculty Publications

No abstract provided.

Taxing Employers For Imposing Mandatory Arbitration, Class Action Waiver, And Nondisclosure Of Dispute Provisions, Rebecca N. Morrow

SMU Law Review

Employers impose coercive dispute resolution terms on their employees more frequently, more broadly, and with greater legal success than ever before. Recent survey data indicates that mandatory employment arbitration provisions bind more than 60 million American workers—over half of the U.S. private-sector nonunion workforce. Employment class action waivers bind nearly 25 million American workers. In 2018, the Supreme Court held 5–4 that mandatory arbitration provisions and class action waivers imposed by employers on their employees do not violate the National Labor Relations Act. These terms prohibit employees from exposing employer wrongdoing in open court, bar employees with valid wage and …

The Worst Tax Law Ever Enacted?, Reuven S. Avi-Yonah

Articles

Some tax laws are worse than others. The 1986 Tax Reform Act is generally considered one of the best. The 2017 Tax Cuts and Jobs Act is generally considered one of the worst, although I would say it is too early to tell what its long-term impact might be, and some of its worst features (like the Code Sec. 199A deduction) might be repealed in the future.

Another example of a generally condemned tax law is the American Jobs Creation Act of 2004. This law was a must-pass piece of legislation because Congress needed to react to the sanctions imposed …

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.

Law's Ability To Further The "Menstrual Movement", Christopher A. Cotropia

Law Faculty Publications

"The current menstrual movement calls for overcoming the cultural stigma associated with menstruation, achieving “menstrual equity,” and ending “period poverty.” The stigma the movement seeks to address is that menstruation is seen as taboo, unclean, and impure. The movement’s aims are twofold: First, it wants to increase awareness of menstruation and remove discrimination against those who menstruate, thus achieving menstrual equity. Second, it intends to provide greater access to menstrual hygiene products (“MHPs”), particularly for homeless and lower income people, thus eliminating period poverty. To achieve these goals, the movement is advocating to legislatively eliminate the “tampon tax” and increase …

A Constitutional Moment In Cross-Border Taxation, Steven Dean

Faculty Scholarship

The complex pattern of formal and informal rules that governs the taxation of cross-border transactions tends to be thought of as rigidly path dependent. (Rixen, 2011) In truth, the Classification and Assignment Constitution has repeatedly undergone sudden changes initiated by influential actors. A failure to acknowledge the power wielded by a handful of states and organizations nurtures an evolutionary myth of cross-border taxation, but a close examination reveals traces of intelligent design, with repeated interventions altering the course of its development.

A century ago a material constitution coalesced around an elegant but flawed algorithm providing for the "classification and assignment …

Executive Pay Clawbacks And Their Taxation, David I. Walker

Faculty Scholarship

Executive pay clawback provisions require executives to repay previously received compensation under certain circumstances, such as a downward adjustment to the financial results upon which their incentive pay was predicated. The use of these provisions is on the rise, and the SEC is expected to soon finalize rules implementing a mandatory, no-fault clawback requirement enacted as part of the Dodd-Frank legislation. The tax issue raised by clawbacks is this: should executives be allowed to recover taxes previously paid on compensation that is returned to the company as a result of a clawback provision? This Article argues that a full tax …

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 …

The Impact Of Particular Provisions Of The 2017 Tax Cuts And Jobs Act On The United States Economy Amidst The Covid-19 Pandemic, Hillary Obinna Maduka

LL.M. Essays & Theses

The Tax Cuts and Jobs Act is the most significant overhaul of the U.S. federal tax system in the last two decades. This paper seeks to discuss some of its most significant provisions and examine their overall impact on the U.S. economy, especially throughout the ongoing coronavirus pandemic.

This paper begins by undertaking an overview of the legislative history of the Act and then proceeds to discuss three provisions of the Tax Cuts and Jobs Acts which have had a tremendous impact on the U.S. economy by altering some major provisions of the United States Internal Revenue Code of 1986. …

Difficulty Of Care: Aligning Tax And Health Care Policy For Family Caregiving, Christine Speidel

Scholarly Articles in Law Reviews & Journals

In the United States millions of people live with disabilities, many of whom require assistance with activities of daily life to remain in their homes and communities. However, financial support for this assistance is limited. Many caregivers forgo working outside the home in order to provide care to a family member. And while state and federal programs provide some compensation for caregiving, caregivers frequently face problems including poverty, lack of health insurance, lack of Social Security and Medicare credits, and lack of retirement savings. Our nation’s paltry support for caregiving threatens the practical ability of people with disabilities to choose …

Difficulty Of Care: Alligning Tax And Health Care Policy For Family Caregiving, Christine S. Speidel

Faculty Publications

In the United States millions of people live with disabilities, many of whom require assistance with activities of daily life to remain in their homes and communities. However, financial support for this assistance is limited. Many caregivers forgo working outside the home in order to provide care to a family member. And while state and federal programs provide some compensation for caregiving, caregivers frequently face problems including poverty, lack of health insurance, lack of Social Security and Medicare credits, and lack of retirement savings. Our nation’s paltry support for caregiving threatens the practical ability of people with disabilities to choose …

Wealth Transfer Tax Planning After The Tax Cuts And Jobs Act, Jeffrey A. Maine, John A. Miller

Faculty Publications

On December 17, 2017, Congress passed the Tax Cuts and Jobs Act (TCJA). Among its many impacts, the TCJA increased the inflation-adjusted estate tax basic exclusion amount to $10,000,000 on a temporary basis. This has dramatic implications for many existing and future estate plans, including a major crossover impact on income tax planning. In this Article, we explain the operation of the federal wealth transfer taxes (the estate tax, the gift tax, and the generation skipping transfer tax) in the wake of the TCJA and dissect the basic tax planning techniques for wealth transmission. The overall design of this Article …

A Major Simplification Of The Oecd’S Pillar 1 Proposal, Michael J. Graetz

Faculty Scholarship

In this report, Graetz suggests major modifications to the OECD’s pillar 1 blueprint proposal to create a new taxing right for multinational digital income and some product sales that would greatly simplify the proposal. The modifications rely on readily available existing financial information and would achieve certainty in the application of pillar 1, while adhering to its fundamental structure and policies.

How The State And Federal Tax Systems Operate To Deny Educational Opportunities To Minorities And Other Lower Income Students, Camilla E. Watson

Scholarly Works

The importance of education cannot be overstated. Education is a core principle of the American Dream, and as such, it is the ticket to a better paying job, homeownership, financial security, and a better way of life. Education is the key factor in reducing poverty and inequality and promoting sustained national economic growth. But while the U.S. Supreme Court has referred to education as "perhaps the most important function of the state and local governments," it has nevertheless stopped short of declaring education a fundamental right guaranteed under the Constitution. As a consequence, because education is not considered a fundamental …

Does The Supreme Court’S Decision In Wayfair Apply Retroactively?, Walter Hellerstein, Andrew D. Appleby

Scholarly Works

A recent decision of the Oregon Tax Court suggests that it may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical. Accordingly, after providing an overview of the case law governing retroactive application of Supreme Court state tax decisions repudiating preexisting constitutional doctrine, we examine the Oregon Tax Court’s opinion in Global Hookah Distributors Inc. v. Department of Revenue, which addressed the question whether Wayfair applied retroactively to the state’s tobacco products tax.