Taxation-State and Local Commons^™

The Case For State Borrowing As A Response To The Current Crisis, David Gamage, Darien Shanske

Articles by Maurer Faculty

The coronavirus pandemic is a national emergency that requires a national response. Asking states to absorb the budgetary losses caused by the pandemic while they are tasked with providing essential frontline services is comparable to asking states during World War II to pay for the landing in Normandy.

This article is a contribution to Project SAFE: State Action in Fiscal Emergencies. We have already argued, more than once, that the federal government should borrow to prevent steep state and local budget cuts. But because the federal government will apparently not take sufficient action, we offer these ideas to states for …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Kaestner Fails: The Way Forward, Mitchell M. Gans

William & Mary Business Law Review

This past term, the Supreme Court applied the Due Process Clause to prevent the states from closing down a tax strategy that employs out-of-state trusts. Many had hoped that the case would serve as a vehicle for the Court to overrule taxpayer-friendly precedents that make the strategy possible. But it failed. The question that emerges is whether the decision leaves the states with a path to address the strategy and thereby prevent it from being used to exacerbate issues of inequality. After examining the decision, this Article considers the options available to the states and then suggests a way forward.

Front Matter (Letter From The Editor, Masthead, Etc.)

The Contemporary Tax Journal

No abstract provided.

Strategic Nonconformity To The Tcja, Part I: Personal Income Taxes, Darien Shanske, Adam Thimmesch, David Gamage

Articles by Maurer Faculty

The dire revenue situation that COVID-19 has created for state and local governments is a well documented and looming reality for state legislatures. We and others have explored a variety of ways that states should respond to this crisis in prior articles as a part of Project SAFE (State Action in Fiscal Emergencies), an academic effort to help states weather the fiscal crisis by providing policy recommendations backed by research. We think, as do many others, that in the absence of sufficient federal action, the states should prioritize raising revenue through targeted taxes on economic actors that are best enduring …

South Dakota V. Wayfair: An Ill-Conceived Blow To The Free Flow Of Interstate Commerce, Revel Shinn Atkinson

Brooklyn Journal of Corporate, Financial & Commercial Law

For more than a century, brick-and-mortar retailers have been losing local customers—first with the rise of mail-order houses and then more acutely with the rapid growth of online retail. As a result, states have noticed a significant loss in sales tax revenue. While an equivalent amount of tax is typically still owed to the state in the form of a use tax, which is to be remitted to the state by the customer, because these taxes are not automatically collected at the time of the sale, customers have overwhelmingly elected not to pay them. In an effort to recover this …

Conformity And State Income Taxes: Suggestions For The Crisis, David Gamage, Michael A. Livingston

Articles by Maurer Faculty

To guarantee adequate revenue in the postCOVID-19 era, state governments should consider using all possible tools at their disposal. This article explains how and why state governments should evaluate their degree of conformity with federal tax changes in order to achieve this purpose.

Reforming State Corporate Income Taxes Can Yield Billions, Darien Shanske, Reuven S. Avi-Yonah, David Gamage

Articles by Maurer Faculty

The federal government should be providing states and localities with hundreds of billions of dollars in aid. The arguments against such aid, including the claim that the states have somehow been profligate, do not stand up to scrutiny. Nevertheless, it seems unlikely that the federal government will do enough, and it is already the case that the federal government is acting too slowly. States and local governments, which generally operate under balanced budget constraints, are, accordingly, already making sweeping cuts4 that will deepen the recession and reduce services when they are most needed.

Rather than make these cuts, it would …

Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone

Michigan Business & Entrepreneurial Law Review

State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute—a taxpayer …

Reforming State Corporate Income Taxes Can Yield Billions, Darien Shanske, Reuven S. Avi-Yonah, David Gamage

Articles

In this installment of Academic Perspectives on SALT, the authors argue that the current crisis is the perfect time to make revenueraising reforms to state corporate income taxes — reforms that would have been desirable policy improvements even during an economic upturn, but that are even more clearly good policy moves in light of the current and upcoming state economic and budgetary crises.

Wayfair Or No Fair: Revisiting Internet Sales Tax Nexus And Consequences In Texas, Jennifer Mendez Lopez

St. Mary's Law Journal

Since 1967, the Supreme Court has revisited the issue of nexus requirements in interstate commerce to keep up with social and technological advancements. However, these restrictive requirements have deprived states of a substantial tax basis. As technology continues to develop exponentially, this presents the need for a new standard that overturns precedent case law. Specifically, the Internet has grown and now necessitates the consideration for and e-commerce taxation collection.

South Dakota v. Wayfair, Inc. correctly decided that states have the power to collect taxes from qualifying out-of-state businesses without the need for a physical presence. Wayfair is moving in the …

States Should Consider Partial Wealth Tax Reforms, David Gamage, Darien Shanske

Articles by Maurer Faculty

This article is a contribution to Project SAFE (State Action in Fiscal Emergencies). In other essays in this project, we explain steps the federal government should take to help state and local governments cope with their looming budget crises. The federal government is much better positioned to manage these crises than states and localities and, ideally, it would act sufficiently to prevent the need for state and local governments to cut spending or raise taxes. However, we fear that the federal government may fail to act sufficiently, leaving states and localities with the need to make painful spending cuts, raise …

Qap Out: Why The Federal Government Should Require More From How States Allocate Low-Income Housing Tax Credits, Connor Blancato

Journal of Law and Policy

Prohibitively high land acquisition and construction costs block affordable housing developers from using the Low-Income Housing Tax Credit program in high opportunity areas. Policymakers must study the history of housing policy in the United States and realize that the LIHTC program works because it suitably balances previously problematic private-market competition, federalism concerns, and compliance issues. Federal lawmakers can look to Qualified Allocation Plans drafted by individual states as a way to encourage the construction of affordable housing without upsetting this equilibrium. To encourage such development, the federal government can require states, in determining tax credit allocations through QAPs, to give …

Into The "Vortex Of Legal Precision": Access To Justice, Complexity, And The Canadian Tax System, Colin Jackson

PhD Dissertations

This thesis is an exploration of access to justice issues in the Canadian tax system. Drawing on the work of Roderick Macdonald, it argues for a broad conception of access to justice based on the empowerment of individuals in all of the sites, processes, institutions where law is made, administered, and applied. It argues that tax law shows the usefulness of this comprehensive approach to access to justice. Using the comprehensive approach to access to justice, the thesis goes on to argue that legal complexity should be seen as an important access to justice issue in tax law. It lays …

How The Federal Reserve Should Help States And Localities Right Now, Darien Shanske, David Gamage

Articles by Maurer Faculty

The COVID-19 pandemic is a giant catastrophe, but the Federal Reserve can still mitigate the looming fiscal crises facing state and local governments. This article — a contribution to Project SAFE (State Action in Fiscal Emergencies) — builds on our prior background essay explaining state and local budget issues.

Alternatives To High Nebraska Agricultural Land Real Estate Taxes, Part 1 Of 2: Capital Gains And Alternative Investments, Austin Duerfeldt

Extension Farm and Ranch Management News

First paragraph

In Nebraska, most of my conversations about managing agricultural properties, whether rental or production, tend to steer toward real estate taxes at some point. While many counties in Nebraska have seen agricultural land taxes drop slightly since the 2015-2017 period, they are still a significant portion of operational expense. For example, dryland acres in Southeast Nebraska ballpark around $60 an acre. For someone looking to cash rent inherited ground, this becomes a major point of concern when looking for a tenant. If that ground cash rents for $190 an acre, and $60 an acre goes towards real estate …

States Should Quickly Reform Unemployment Insurance, Brian Galle, David Gamage, Erin Scharff, Darien Shanske

Articles by Maurer Faculty

COVID-19 is causing mass layoffs and related economic hardship, as well as budget crises for state and local governments. This article is part of Project SAFE (State Action in Fiscal Emergencies), an academic effort to help states weather the fiscal crisis by providing policy recommendations backed by research. This article will focus on how state governments should reform unemployment insurance (UI) eligibility and benefits and the taxes funding these programs.

The Ordinary Diet Of The Law: How To Interpret Public Law 86-272, Darien Shanske, David Gamage

Articles by Maurer Faculty

Indeed, in today’s world, filled with legal complexity, the true test of federalist principle may lie, not in the occasional constitutional effort to trim Congress’ commerce power at its edges, or to protect a State’s treasury from a private damages action, but rather in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.

Public Law 86-272 is an important feature of the landscape of both state corporate income taxation and state tax policy more generally. The Multistate Tax Commission is completing an important project on updating the guidance given …

Taxes, Theft, And Indian Tribes: Seeking An Equitable Solution To State Taxation Of Indian Country Commerce, Adam Crepelle

West Virginia Law Review

No abstract provided.

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal …