Taxation-Federal Commons^™

Taxing Novelty, Amanda Parsons

Publications

The advent of any new and unfamiliar economic activity sparks a flood of questions across a variety of legal fields, including tax law. This Article diagnoses the legal uncertainties surrounding novel activities as challenges of legibility in statecraft. Legibility is the process by which the state simplifies complex and often unfamiliar systems into a format that can be governed. Across broad areas of the law, placing things and activities into different legal categories is a means for the state to achieve legibility.

This Article aims to incorporate the framework of legibility into existing scholarly discourse on legal categories. Through the …

Transforming Tax Expenditures, Sloan G. Speck

Publications

For decades, reformers have advocated the repeal of tax expenditures--disguised government spending through special preferences in the Internal Revenue Code. And yet, tax expenditures persist, impairing federal tax receipts by more than $1.8 trillion in 2024. This Article introduces a novel mechanism for tax expenditure reform. To the extent that direct statutory repeal proves impossible or impractical, lawmakers can achieve an equivalent result through a strategy of legislative anti-repeal. By radically expanding a tax expenditure's legal scope, then adjusting progressive income tax rates to account for revenue loss and distributional considerations, lawmakers can effectively eliminate tax expenditures from the tax …

Uncharitable Think Tanks, Faith Stevelman

FIU Law Review

As people debate whether the Heritage Foundation’s Project 2025 is good policy, what’s being overlooked is that it’s likely unlawful as the work product of a charitable think tank. (Think tanks nearly always are qualified as charities under the tax code.) To reinforce think tanks’ educational mission, tax law sets rigorous content requirements for their materials. It also bans them from campaigning, sharply limits their lobbying, and prohibits their benefiting private parties. The doctrines are intended to keep think tanks charity-worthy educators, but they have not succeeded.

Ironically, the failure reflects other features of tax law that incentivize using think …

Are Nonprofit Tax Exemptions And Deductions “Federal Financial Assistance”? Should They Be?, Lloyd Hitoshi Mayer

Journal Articles

Two recent federal court decisions have reignited the debate over whether “Federal financial assistance” as used in four federal anti-discrimination statutes includes the tax benefits enjoyed by most nonprofit organizations. Both courts concluded that it does. While an appellate court reversed one decision, and the other case settled without appellate review, these holdings create significant uncertainty. And this uncertainty affects the more than 1.8 million tax-exempt nonprofits, many if not most of which do not receive federal financial assistance through other channels and so could safely conclude these statutes do not reach them, absent these decisions.

This Article first considers …

Carried Interest: Recent Tax Holding Envisions Need For New Legislation, Patrick Lucas

FIU Law Review

In the financial world, carried interest represents the share of the profits of a private equity fund allocated to its manager which is disproportionate when compared to the manager’s relative capital contribution. On May 3, 2023 the Tax Court issued its memorandum opinion in ES NPA Holding, LLC v. Commissioner. The decision quickly became popularized as providing reassurance to sponsors of private equity funds that they will rarely, if ever, realize income as a result of the issuance of a profits/carried interest (the so-called front-end issue for carried interest). The so-called back-end issue is how the income arising from a …

Wellness And The Tax Law, Leigh Z. Osofsky

Faculty Publications

The tax law has long provided extensive subsidies for “medical care.” These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care …

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Scholarship

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

Getting Donor-Advised Funds Regulation Right: Closing The Public Support Test Loophole, Benjamin Leff

Scholarly Articles in Law Reviews & Journals

Donor-Advised Funds (“DAFs”) have been the subject of vigorous critical scholarship in the past two decades. This Article addresses two timely issues in DAF regulation: the theoretical justifications for extra strict regulation of DAFs, and, in light of those justifications, how to close a major loophole in the regulatory scheme. DAFs have been called “virtual private foundations” because they are similar in some respects to private foundations, but until two decades ago, they were treated for legal purposes as public charities. In 2006, Congress enacted legislation that both formally recognized DAFs for the first time and subjected them to several …

Structural Tax Reform And The Next Reit Revolution, Sloan G. Speck

Publications

No abstract provided.

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Reading The Tea Leaves: Unrealized Income, Separation Of Powers, And An Examination Of Whether There Is More To The Moore Case Than The Mandatory Repatriation Tax, Natasha Varyani

Roger Williams University Law Review

No abstract provided.

Boden Lecture: Taxation Of Autonomous Artificial Intelligence, Reuven S. Avi-Yonah, Lucas Brasil Salama, Herbert Snitz, W. Robert Thomas

Articles

This Article proposes that tax can be a useful supplement to other measures to regulate Autonomous Artificial Intelligence (AAI) and limit its potential harmful effects. This proposal differs from command-and-control regulation of AAI along the lines of European Union legislation that may unduly limit the development of AAI. It also differs from existing proposals to tax AAI to generate revenue to help workers displaced by AAI programs, or to tax the data used by AAI The proposal is based on granting AAI programs like ChatGPT separate legal personhood, like corporate personhood, while incentivizing or requiring their corporate owner to place …

The Original Function Of Tax Apportionment, Conor Clarke, Peter J. Wiedenbeck

Scholarship@WashULaw

The Constitution’s requirement that direct taxes be apportioned by state population is both confounding and important. At best, tax apportionment is regarded as reflecting the unique federalism concerns of the Founding; at worst, it is viewed as a tainted product of the constitutional compromise over slavery. And, in light of the Supreme Court’s decision in Moore v. United States (2024)—which refused to rule out that apportionment might be required for taxes on unrealized gains—tax apportionment is the subject of renewed legal and scholarly interest.

We consider one historical dimension of tax apportionment that has not been developed elsewhere: its original …

Into The Sunset: Divorcing Families Need Their Slice Of The Tcja Reversions, John C. Mcdonald

BYU Law Review

On its path to sufficiently offsetting its major cut to the corporate income tax rate in 2017, Congress turned to a surprising source for funds: the alimony support payments of recently divorced families. Alimony’s inclusion/deduction regime in §§ 71 and 215 of the Code allowed divorcing couples to reach mutually beneficial divorce agreements for over half a century until it was unceremoniously repealed by the Tax Cuts and Jobs Act of 2017 with a striking lack of satisfying legislative justifications. This Note suggests that in evaluating the impact of the repeal, Congress and others have failed to consider an important …

The 40th Annual Tei - Sjsu High Tech Tax Institute Conference On November 4-5, 2024: The Latest And Greatest In Equity Compensation, Shuang Zhang

The Contemporary Tax Journal

No abstract provided.

The 40th Annual Tei-Sjsu High Tech Tax Institute Conference On Nov. 4-5, 2024: R&D In Uncertain Tax Times, Jing Luo

The Contemporary Tax Journal

No abstract provided.