Taxation-Federal Commons^™

Rationally Cutting Tax Expenditures, Gregg D, Polsky

Scholarly Works

This article illustrates the differences between the two types of tax expenditures by examining the child tax credit (a distributional expenditure), the charitable deduction (an allocative expenditure), and taxfree saving accounts and the mortgage deduction (both of which are-usually defended on allocative grounds but probably have mainly distributional impacts). These differences should be well understood by policymakers as they consider tax expenditure reform as part of a deficit reduction plan.

Congress, Public Values, And The Taxing Power, Mary L. Heen

Law Faculty Publications

In an article published several years ago, I examined the financing dimension of private choice and proposed a framework for analyzing Congress’s taxing and spending decision-making processes. Although issues other than health care reform provided the impetus for the article, the framework developed there provides a broader perspective from which to consider the taxing power portion of Chief Justice Roberts’ opinion in National Federation of Independent Business v. Sebelius, 567 U.S. — (2012).

Legal Ethics And Federal Taxes, 1945-1965: Patriotism, Duties, And Advice, Michael Hatfield

Articles

This article is devoted to exploring the legal ethics writings by tax lawyers in a pivotal period of income tax history: 1945-1965, the first two decades of the federal income tax as we now know it. Although the income tax began in 1913, it was World War II that created the modem mass income tax: in 1939 there were 3.9 million individual income tax taxpayers but by 1945 there were 42.6 million. This period was also one of significant progress in the administration of the income tax: the Internal Revenue Code was re-organized in 1954 and, following widespread corruption scandals, …

The Conservation Easement Tax Expenditure: In Search Of Conservation Value, Roger Colinvaux

Scholarly Articles

Federal tax law has long provided a tax benefit for charitable contributions of easements for conservation purposes. A fundamental problem with this conservation easement tax expenditure is that the measure for the tax benefit – lost economic development value – is erroneous. Use of such an erroneous measure obscures the conservation benefits of the program by focusing attention and resources on divining a largely extraneous and unhelpful number. Further, to a considerable extent, the easement program is reflexively justified and understood based on this false measure, as if it represented the conservation value of the program. The Article argues that, …

Comments On Daniel Shaviro's Tax Reform Implications Of The Risk Of A U.S. Budget Catastrophe, David Gamage

Articles by Maurer Faculty

This symposium essay reviews and comments on Daniel Shaviro's article "Tax Reform Implications of the Risk of a U.S. Budget Catastrophe."

Change We Can't Believe In ... Or Afford: Why The Timing Is Wrong To Reduce The Estate Tax On The Wealthiest Americans, Phyllis C. Taite

Faculty Articles

At the end of the year 2008 the United States was in the midst of an economic storm. The country started going through its worst financial state since the Great Depression. Historically, transfer taxes were instated specifically to raise revenue during the country’s financial time of need. The temporary repeal during the 2010 tax year occurred during a time when the country was experiencing an economic storm, a time when the country could least afford to forego the additional revenue. Consequently, the timing of the temporary repeal was in direct contradiction to the original purpose of the estate tax. While …

Fiscal Policy In An Era Of Austerity, David M. Schizer

Faculty Scholarship

We face a time of stagnant economic growth, severe unemployment, massive budget deficits, and an increasingly competitive global economy. These daunting challenges are the legacy of a number of unwise policy decisions in both the public and private sectors. Although the good news is that unsound policies can be changed, the bad news is that no single step will do the trick. It is a challenge to rely on monetary policy when interest rates are near zero. There also is uncertainty – and a heated debate among economists – about the effectiveness of a Keynesian stimulus. One thing we know …

Who Wins When Uncle Sam Loses? Social Insurance And The Forgiveness Of Tax Debts, Shu-Yi Oei

Faculty Scholarship

Small-scale tax collections decisions have large-scale distributive consequences. The central question addressed in this Article is whether a deliberate government decision to forgive or to not collect a tax owed can be justified, given the distributive consequences that may result. In brief, the government’s decision not to pursue full collection of a delinquent tax debt may give rise to two types of distributive outcomes: First, the benefits of non-collection may be captured by the forgiven taxpayer’s other creditors. Second, the costs of non-collection may be imposed upon compliant taxpayers and the public through higher taxes, decreased government provision of goods, …

The Anti-Injunction Act And The Individual Mandate, Steve R. Johnson

Scholarly Publications

The Supreme Court will soon consider challenges to constitutionality of the so-called individual mandate portion of the Patient Protection and Affordable Care Act of 2010 (PPACA). It is important for the nation that the Court render a decision on the merits. This could be derailed, however, were the Court to dispose of the case by holding that the Anti-Injunction Act (AIA) and the Declaratory Judgment Act (DJA) preclude pre-enforcement review. Disposition on those grounds would subject the federal government, states, businesses, and individuals to years of additional uncertainty, inconvenience, and expense.

Fortunately, that threat to resolution on the merits can …

Flp Loss, But Crummey Win, Wendy G. Gerzog

All Faculty Scholarship

In Turner the Tax Court determined that section 2036 applied to the decedent’s transfers of assets to his family limited partnership but that the insurance premiums he paid indirectly to his insurance trust qualified for the annual exclusion.

Recent Developments In Federal Income Taxation, Ira B. Shepard

William & Mary Annual Tax Conference

No abstract provided.

Fiscal Federalism In The United States, Walter Hellerstein

Presentations and Speeches

This presentation explores the fiscal powers of U.S. Federal and State governments with respect to taxation and spending.

Cohen: Hard Case Makes (Semi) Bad Law, Steve R. Johnson

Scholarly Publications

The first Justice Harlan famously cautioned that hard cases can lead to bad law. United States v. Clark, 96 U.S. 37, 49 (1878) (dissenting opinion). This aphorism captures the reality that, when confronted with litigating equities strongly favoring one party, judges tend to massage doctrine to support judgment for that party.

The New Super-Charged Pat (Power Of Appointment Trust), Wendy G. Gerzog

All Faculty Scholarship

This article proposes to repeal the QTIP provisions in order to collect revenue now for transfers that are essentially transfers to third parties and not to the decedent's spouse. Because there are advantages of increased flexibility attendant to a QTIP as opposed to a PAT, this article proposes to take those repealed QTIP benefits and attach them to the PAT, which would greatly enhance that marital deduction trust form. A super-charged PAT would thereby be able to preserve the decedent's GST tax exemption (like a reverse QTIP), create a decedent's by-pass trust by allowing a PAT (or a partial PAT) …

The Unaffordable Health Act: A Response To Professors Bagley And Horwitz, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.

Excluding Expert Valuation Testimony, Wendy G. Gerzog

All Faculty Scholarship

In Boltar, a case in which the Tax Court addressed the valuation of a conservation easement, the court ruled on the admissibility of expert testimony.

United States V. Textron: The Right Answer To A Billion-Dollar Question, Ned Hillenbrand

Washington and Lee Law Review

No abstract provided.

Beyond Territoriality And Deferral: The Promise Of "Managed And Controlled", Reuven S. Avi-Yonah

Articles

In the new version of his Stop Tax Haven Abuse Act, Sen. Carl Levin, D-Mich., once again proposed to modify the definition of residence for domestic corporations (IRC section 7701). Section 103 of the act seeks to: stop companies run from the United States claiming foreign status by treating foreign corporations that are publicly traded or have gross assets of $50 million or more and whose management and control occur primarily in the United States as U.S. domestic corporations for income tax purposes. [Emphasis in original.] This is not a new suggestion. In response to the inversions of the early …

Technology Solves Mtic - Vln, Rtvat, D-Vat Certification, Richard Thompson Ainsworth

Faculty Scholarship

Technology solves missing trader intra-community (MTIC) fraud. This should come as no surprise. MTIC is technology-intensive fraud – its solution should also be technology-intensive.

MTIC is getting to be an out-dated term. Now that missing trader fraud has move into services it is no longer confined to intra-community trade, and the older acronym should be adjusted to MTIC/MTEC fraud (with MTEC standing for missing trader extra-community).

MTIC/MTEC fraud is fully digitized (the supply, the movement of the supply, and the funding). The consequences should be clear. MTIC/MTEC must be prevented (before the fact), not pursued (after the fact). In the …

New Light On Auer/Seminole Rock Deference, Steve R. Johnson

Scholarly Publications

We have been engaged in an extended exploration of doctrines under which courts may defer to positions and interpretations by state and local tax agencies. The immediately prior installment of this column discusses such deference under state equivalents of what is known as the Auer or Seminole Rock principle, under which courts usually defer to agency interpretations of the agencies’ own ambiguous regulations.

About two weeks after the publication of that installment, the U.S. Supreme Court handed down a major new decision on the Auer principle: Talk America, Inc. v. Michigan Bell Telephone Co. Talk America bids fair to be …