Taxation-Federal Commons^™

Foreword: Moore, Loper Bright, Corner Post, And The Future Of The Federal Tax System, David Hasen

UF Law Faculty Publications

In the 2023 Term, the Supreme Court decided three cases that are likely to have significant implications for the federal tax system. Moore v. United States presages a resuscitated constitutional realization requirement for the income tax—a requirement long thought moribund, if not dead, by most commentators and policymakers. Loper Bright Enterprises v. Raimondo jettisoned the Chevron doctrine’s deferential standard of review of agency rulemaking, returning the standard to some perhaps modified version of its more searching pre-Chevron status. And Corner Post, Inc. v. Board of Governors of the Federal Reserve System held that the statute of limitations for most …

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 …

Fiscal Citizenship And Taxpayer Privacy, Alex Zhang

Faculty Articles

Should individual tax data be public or confidential? Within the United States, secrecy has been the rule since the Tax Reform Act of 1976. But at three critical junctures—the Civil War, the 1920s, and the 1930s—Congress made individual tax records open for public inspection, and newspapers published the incomes of the billionaires of the time. Today, Finland, Norway, and Sweden all mandate significant transparency for individual tax information.

This Essay intervenes in the tax-confidentiality debate by building a new analytical framework of fiscal citizenship. Until now, scholars have focused on compliance—whether disclosure incentivizes honest reporting of income, and if it …

Refundable Tax Credit Design: Cohabitating Parents And Gender Presumptions, Michelle Lyon Drumbl

Scholarly Articles

This Essay is meant to encourage further thinking to improve upon design options for unmarried cohabitating parents. Are there better ways to recognize the needs of unmarried co-parents (whether living together or not) and to provide support for shared parenting? The policy considerations for providing support to unmarried cohabitating parents are different than those for supporting married couples, given that these individuals lack the financial protections of a formal partnership.

One solution is to have a default rule whereby the CTC is awarded to the primary caregiver. Canada’s gender presumption provides a degree of administrative simplicity, but the IRS could …

Delay, Deny, Tax, Samuel D. Brunson

Faculty Publications & Other Works

Health insurance companies are having a moment in the United States. Their moment involves widespread public objections to their seemingly random and increasing willingness to deny coverage and reimbursement to insureds. These denials are in large part not part of a program to improve health coverage but, rather, to reduce insurance companies’ expenses and, in turn, increase their profits.

There is broad consensus that something has to change. The public demands it. Bipartisan groups of senators and representatives have investigated it. Even the health care industry acknowledges that something needs to change. To actually make the health care system better …

A New Johnson Amendment: Subsidy, Core Political Speech, And Tax-Exempt Organizations, Samuel D. Brunson

Faculty Publications & Other Works

Seven decades ago, Congress enacted the so-called Johnson Amendment. This provision of tax law forbids tax-exempt public charities from endorsing or opposing candidates for office. Under the plain language of the Internal Revenue Code, an organization that violates the Johnson Amendment does not qualify as tax-exempt.

The legislative history underlying the Johnson Amendment is sparse, and it provides few clues as to Congress’s reason for enacting it. In the ensuing years, though, it has become clear that Congress does not want to subsidize campaigning activities, and this has become the most convincing justification for the Johnson Amendment. However, the design …

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 …

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 …

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 …

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

Publications

No abstract provided.

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.

The Irs's Misguided Playbook For Nil Collectives, Olivia M. Lubarsky

American University Law Review

Since the emergence of name, image, and likeness (NIL) opportunities for NCAA student-athletes, the IRS continues to scrutinize and ultimately deny many NIL collectives’ claims for section 501(c)(3) tax-exempt status, particularly questioning their asserted charitable purposes. This Note explores the foundation of the IRS's reasoning and argues that the IRS tangles key legal requirements, undervalues the public benefits generated by NIL collective activities, and applies inconsistent standards that overlook the educational and amateur sports charitable purposes these collectives can serve. By addressing the inconsistencies in the IRS's reasoning, NIL collectives may chart a viable path toward securing tax-exempt status.

The President’S Authority To Impose Tariffs, Chad Squitieri

Scholarly Articles

The International Emergency Economic Powers Act (“IEEPA”) empowers the President to “regulate . . . importation.” In Learning Resources v. Trump, the United States District Court for the District of Columbia ruled that such language did not empower the President to impose tariffs. The District Court reasoned that there was a distinction between the power to “regulate” and the power to “tax,” and that tariffs required a power to tax. This Essay explains why the District Court was wrong.

The Constitution’s original meaning and Supreme Court precedent indicate that tariffs can be an exercise of Congress’s power to regulate …

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 …

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 …

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 …

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 …

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 …

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 …