Taxation-Federal Commons^™

Why States Should Tax The Gilti, David Gamage, Darien Shanske

Articles by Maurer Faculty

A centerpiece of the 2017 federal tax legislation’s reforms to international corporate income tax rules is the new global intangible low-taxed income regime (or GILTI). In a prior essay, we argued that U.S. state governments should conform to GILTI. But might there be constitutional restrictions preventing state governments from doing so? This essay argues that state governments can constitutionally conform to the federal GILTI rules and thereby tax GILTI income as part of the states’ corporate income tax bases. However, in doing so, we explain that state governments will need to be attentive to background constitutional principles.

Why States Can Tax The Gilti, David Gamage, Darien Shanske

Articles by Maurer Faculty

A centerpiece of the 2017 federal tax legislation’s reforms to international corporate income tax rules is the new global intangible low-taxed income regime (or GILTI). In a prior essay, we argued that U.S. state governments should conform to GILTI. But might there be constitutional restrictions preventing state governments from doing so? This essay argues that state governments can constitutionally conform to the federal GILTI rules and thereby tax GILTI income as part of the states’ corporate income tax bases. However, in doing so, we explain that state governments will need to be attentive to background constitutional principles.

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

Superficial Proxies For Simplicity In Tax Law, Emily Cauble

University of Richmond Law Review

Simplification of tax law is complicated. Yet, political rhetoric surrounding tax simplification often focuses on simplistic, superficial indicators of complexity in tax law such as word counts, page counts, number of regulations, and similar quantitative metrics. This preoccupation with the volume of enacted law often results in law that is more complex in a real sense. Achieving real simplification—a reduction in costs faced by taxpayers at various stages in the tax planning, tax compliance, and tax enforcement process—often requires enacting more law, not less. In addition, conceptualizing simplicity in simplistic terms can leave the public vulnerable to policies advanced under …

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Introduction to Symposium on Feminist Judgments: Rewritten Tax Opinions.

Preventing Tax-Exempt Propaganda: The Case For Defining The Second Prong Of The Methodology Test, Jordanne Miller

Catholic University Law Review

Under current Treasury Regulations, various propaganda groups throughout the United States are exempt from paying federal income tax. This is so because the current test used by the IRS to determine tax-exempt eligibility, the methodology test, is incapable of separating wild propaganda from viewpoints supported by facts.

The IRS created the methodology test in the late 1970s/early 1980s. Since then, groups denied tax-exempt status have repeatedly challenged its validity. The IRS has responded, and the test has evolved. However, the second prong of the test remains undefined—it is still unclear what it means for facts to be “distorted.” This Comment …

Letter From Jeffery M. Kadet And David L. Koontz To Internal Revenue Serv. (Aug. 20, 2019) On Notice Of Proposed Rulemaking: Classification Of Cloud Transactions And Transactions Involving Digital Content, Jeffery M. Kadet, David L. Koontz

Articles

No abstract provided.

Cloudy With A Chance Of Taxation, Orly Mazur, Rifat Azam

Faculty Journal Articles and Book Chapters

The growth of the digital economy, and, in particular, cloud computing, has put a significant strain on sales taxation and other consumption tax systems. The borderless, anonymous, and digital nature of cloud computing raises questions about the paradigm used to determine the character of the transaction and the location where consumption, and therefore, taxation occurs. From an American perspective, the effective resolution of these issues continues to grow in importance in light of the recent U.S. Supreme Court decision in South Dakota v. Wayfair and the growing number of U.S. businesses transacting overseas in jurisdictions that impose value-added taxes (VATs). …

Respect The Hustle: Necessity Entrepreneurship, Returning Citizens, And Social Enterprise Strategies, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This Article addresses a pervasive and growing problem for returning citizens – high rates of economic insecurity – and as a novel solution, proposes the creation of Economic Justice Incubators a new municipally led social enterprise strategy.

Mass incarceration is a national problem and requires comprehensive criminal justice reform. In contrast, the process of reentry is locally focused thanks to a complex web of collateral consequences. An estimated 641,000 people return home from prison each year, many to a limited number of economically distressed communities. Once released, their mobility is limited by the terms of their parole and the collateral …

Attacking Innovation, Jeffrey A. Maine

Faculty Publications

Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

Cryptocurrency Hard Forks And Revenue Ruling 2019-24, Eric D. Chason

Faculty Publications

No abstract provided.

America's (D)Evolving Childcare Tax Laws, Shannon Weeks Mccormack

Articles

Proponents have touted the ability of the Tax Cuts and Jobs Act (the TCJA) — enacted in the twilight of 2017 — to help American working families. But while the TCJA expanded some benefits available to parents with dependent children, these parental tax benefits may be claimed regardless of whether or to what extent childcare costs are incurred to work outside the home. To help working parents with these costs (which are often their largest expense), Congress might have turned to two other mechanisms in the tax law — the “child and dependent care credit” and the “dependent care exclusion.” …

Transitioning From Gilti To Fdii? Foreign Branch Income Issues, Jeffery M. Kadet, David L. Koontz

Articles

In this article, Kadet and Koontz explain the risks and benefits multinationals must consider in deciding whether to transition some operations conducted within a controlled foreign corporation (along with the associated income) into a domestic group member to achieve a structure that qualifies for foreign-derived intangible income.

Letter From Jeffery M. Kadet To Internal Revenue Serv. (Oct. 6, 2019) On Notice 2019-30, 2019-2020 Priority Guidance Plan - Sourcing Of Cloud Services Income, Jeffery M. Kadet

Articles

No abstract provided.

Fixing Philanthropy: A Vision For Charitable Giving And Reform, Roger Colinvaux

Scholarly Articles

The article explains how Congress can advance the goals and values of philanthropy and address the crisis of the charitable sector with a number of legislative initiatives. These include expansion of the charitable giving incentive, reform of in-kind contributions, getting more money to working charities with a payout rule for donor advised funds (DAFs), and changing standards for private foundation transfers to DAFs. Congress can also improve the worthiness of the charitable sector by maintaining the separation of politics and charity, supporting oversight (including by mandatory e-filing of returns), and by revisiting some of the rushed through ideas of recent …

How Not To Read International Harvester: A Response, Walter Hellerstein

Scholarly Works

In this article, Hellerstein examines a recent article by Alysse McLoughlin and Kathleen Quinn and seeks to clear up the confusion surrounding International Harvester.

Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky

Faculty Scholarship

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, …

The Impact Of Law On The State Pension Crisis, Elizabeth S. Goldman, Stewart E. Sterk

Articles

While some state and municipal pension plans have funds sufficient to meet obligations to retirees without imposing onerous obligations on current and future taxpayers, underfunding of plans in other states has reached disastrous proportions, raising the possibility of default on pension obligations, cuts in public services, steep tax increases, or some combination of the three. The substantial differential in pension funding might be attributed to divergent political pressures, different responses to uncertainty about investment returns, or other factors. Our examination of pension funding law in ten states-five with the best-funded plans and five with the worst-funded plans-highlights the role of …

Symposium: The Future Of The New International Tax Regime, Rosanne Altshuler, Fadi Shaheen, Jeffrey Colon, Michael Graetz, Rebecca Kysar, Susan Morse, Daniel Shaviro, Richard Phillips, Daniel Rolfes, Daniel Rosenbloom, Stephen Shay, Steven Dean

Faculty Scholarship

The symposium was held at Fordham University School of Law on October 26, 2018. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory materials in respect to certain statements made by the speakers.

The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak

Faculty Scholarship

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment-sometimes because of the failure of the IRS to enforce the tax …