bluuebunny/crossref_metadata_2025 huggingface dataset:
Accessions to Wealth, Realization of Gross Income, and Dominion and Control: Applying the “Claim of Right Doctrine” to Found Objects, Including Record-Setting Baseballs
Authors: Dodge Joseph M.
Published: May 2022

This article explores the tax treatment of certain in-kind receipts of property, namely, windfall found objects. The basic and unremarkable thesis is that in-kind property windfalls (commonly referred to as “found objects”) are gross income when received. However, there is more than meets the eye here: the finder of a found object often does not obtain clear legal title, so there exists a possibility that the item might have to be returned to its rightful owner. This possibility of having to return the item raises two issues seriatim. The first is that the income represented by the found object may not be immediately realized due to the forfeiture condition and attendant valuation problems. This approach is explored but rejected. At this point the solution appears to be including the item in gross income upon receipt and claiming a deduction if and when the item is returned. This approach is commonly referred to as the “claim of right doctrine,” although, after James v. United States, its operation no longer is conditioned on the taxpayer’s having a “claim of right.” In any event, the application of this doctrine to in-kind property (as opposed to cash) is somewhat problematic, but I argue in favor of this approach. The conclusion is that the object should be included upon receipt, but that the idea of “receipt” can here be rendered in a flexible fashion so as to allow for a disclaimer or its functional equivalent.The endeavor might be vulnerable to the charge of being “much ado about nothing” were it not for a recent piece by Professors Lawrence Zelenak and Martin McMahon arguing that found objects, such as record-setting home run baseballs, are not “residual” gross income upon acquisition. Zelenak and McMahon justify their thesis by analogy first to imputed income and then to self-created assets, which are not taxed until (and if) they are sold or exchanged. Moreover, Zelenak and McMahon suggest that Regulations section 1.61-14(a), which cites “treasure trove” as being an example of in-kind gross income, is probably invalid or, if it is not, should be withdrawn.
Agency Activism as a New Way of Life: Administrative Modification of the Internal Revenue Code Through Limited Issue Focused Examinations
Authors: Afield W. Edward
Published: May 2022

The IRS has begun to get more aggressive. Contrary to what one might expect, however, this new stance has greatly benefitted taxpayers. Due to a lack of proper funding, the agency has found itself in an impossible situation when it comes to enforcing the tax laws. This problem is not new, however, as the IRS has historically never had enough resources to provide for completely effective administration of the tax laws. It knows full well that it cannot audit taxpayers quickly and thoroughly with the resources it currently has. Although the problem is a familiar one, what the IRS has recently been doing about it is cause for concern.In the name of increasing efficiency and better utilizing limited resources, the IRS has begun to adopt audit policies that overly favor taxpayers and greatly hinder the IRS’s ability to perform thorough audits. Highlighting this trend is a relatively new audit technique used by the Large to Mid-Size Business Division (LMSB), which “serves corporations, subchapter S corporations, and partnerships with assets greater than $10 million.”
Suppose FIRPTA Was Repealed
Authors: Taylor Willard B.
Published: May 2022

This article argues, as others have before, that the Foreign Investment in Real Property Tax Act of 1980 (or “FIRPTA”), or at least the provisions of FIRPTA relating to “United States real property holding corporations,” should be repealed. Their enactment in 1980 was misguided and in any event changes in the Internal Revenue Code since then have made the provisions obsolete. But if FIRPTA is repealed, in whole or in part, the article argues that the lack of parity between foreign investment in real property that is made directly or through a partnership, on the one hand, and foreign investment in a real estate investment trust (or a regulated investment company that invests in shares of real estate investment trusts) should be dealt with. Otherwise, repeal will exacerbate existing distortions (which were already pushed further by FIRPTA) resulting from the choice of the entity used to make an investment in US real property. The article also suggests that repeal of FIRPTA would provide an opportunity to look at the taxation of foreign investment in the United States more broadly and in particular the rules that tax income from U.S. real property. The tax treatment of inward investment is a generally neglected subject.The article concludes by arguing against legislation that would keepthe FIRPTA rules and simply expand provisions of present law that favor foreign investment through real estate investment trusts, such as the Real Estate Jobs and Investment Act of 2011.
The De Novo Doctrine: Irrelevant to Relevancy in Civil Tax Litigation
Authors: Kummer Michael
Published: May 2022

"A tax case is a de novo proceeding and the thoughts, procedures, conclusions, reasoning, or factual findings of Internal Revenue Service employees about a taxpayer's liability are irrelevant."Any attorney who has handled a tax case on a taxpayer's behalf has likely heard this argument, or a variation of it, during the discovery process, during motion practice, or even in the courtroom when attempting to introduce evidence. Many attorneys from the Internal Revenue Service ("Service") or Department of Justice who defend or bring tax cases on the government's behalf have likely asserted some version of the "de novo doctrine." Indeed, the Service and Department of Justice commonly raise the de novo doctrine in an attempt to defeat taxpayers' requests to discover or introduce into evidence information about the Service's audit or facts and information gathered by the Service and contained in its audit file.2 The asserted ground for withholding such information from taxpayers is that none of it is relevant to the court's inquiry, which is to determine the merits of taxpayers' liabilities.
Tax Abuse According to Whom?
Authors: McCormack Shannon Weeks
Published: May 2022

Before 1996, the Internal Revenue Code presumed that tax regulations applied to transactions executed before their enactment, giving the Treasury Department broad authority to regulate retroactively. In 1996, however, Congress reversed this presumption, requiring regulations relating to Code sections enacted after 1996 to operate prospectively. Congress also provided an important exception in section 7805(b)(3), allowing tax regulations to apply retroactively “to prevent abuse.” Congress did not, however, explicitly define abuse; nor did it designate to any specific actor the power to do so. This Article provides a comprehensive look at the level of deference reviewing courts owe a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception. Generally, an agency’s statutory interpretation is entitled to receive either the strong standard of deference articulated in Chevron v. Natural Resource Defense Council, or the lesser degree of deference articulated in Skidmore v. Swift & Co. To date, the courts reviewing retroactive tax regulations enacted to prevent abuse have declined to apply Chevron deference, relying on administrative law principles recently rejected by the Supreme Court in Mayo Foundation v. United States. This Article, therefore, provides a needed guide to future courts by applying the post-Mayo deference framework to Treasury Regulations that interpret section 7805(b)(3). This Article concludes that, under this framework, a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception should receive strong Chevron deference so long as it is promulgated under proper administrative procedures.This analysis provides a significant contribution. Through the issuance of retroactive regulations, Treasury promotes the efficient enforcement of the tax laws and deters egregious abuse. But case law suggests that the courts and Treasury Department have very different interpretations of the Code’s abuse exception. Therefore, the ability of Treasury to respond to and prevent aggressive tax behavior through retroactive tax regulation may turn largely on which actor possesses primary authority to define tax abuse.
EITC as Income (In)Stability?
Authors: Ryan Kerry A.
Published: May 2022

Congress enacted the Earned Income Tax Credit (EITC), inter alia, to entice poor single mothers to work (or work more) as a means of lifting themselves out of poverty. Its design as a wage subsidy that phases out at higher earnings levels is intended to accomplish this goal. A strong labor market is crucial to the success of work-based benefit programs, such as the EITC. The EITC can motivate female household heads to work (or work more), but they cannot act on that motivation if no jobs or additional working hours exist. This Article demonstrates that during economic downturns, the EITC wage subsidy contributes to, rather than prevents, poverty in single-mother families. Lost EITC benefits exacerbate recession-induced earnings losses, a phenomenon this Article refers to as income destabilization. In contrast, the EITC stabilizes the incomes of its wealthier beneficiaries as increased credit amounts offset underlying salary declines. While this pattern of income (de)stabilization is an unintended byproduct of the design of the EITC as a targeted wage subsidy, its negative impact on the economic welfare of female-headed households is problematic, given that these same families are the historically targeted program beneficiaries. This Articleoffers a narrowly tailored proposal that alters the structure of the EITC during recessionary periods in order to prevent EITC-induced income destabilization.
Tearing out the Income Tax by the (Grass)Roots
Authors: Zelenak Lawrence
Published: May 2022

Rich People’s Movements: Grassroots Campaigns to Untax the One Percent.By Isaac William MartinNew York: Oxford University Press. 2013.I. INTRODUCTION ............................................................................. 649II. A CENTURY OF RICH PEOPLE’S ANTI-TAX MOVEMENTS ......... 651III. EXPLAINING THE SUPPORT OF THE NON-RICH .......................... 656IV. BUT WHAT ABOUT THE FLAT TAX AND THE FAIRTAX? ............ 661V. THE RHETORIC OF RICH PEOPLE’S ANTI-TAX MOVEMENTS: PARANOID AND NON-PARANOID STYLES .................................... 665VI. CONCLUSION ................................................................................. 672
Tax Base Erosion: Reformation of Section 482's Arm's Length Standard
Authors: Wells Bret , Lowell Cym
Published: May 2022

There is an important debate about fundamental tax reform looming, and the problem of homeless income (HI)—commonly referred to in the current round of debate as “base erosion and profit shifting” (BEPS)—is at the center of the storm. The media has incited the general public through llegations that multinational enterprises (MNEs), including many prominent MNEs, have misreported their income, and that tax havens are a public menace. Not surprisingly, a wide range of policy formulations have been, and will be, put forward to address the HI/BEPS problem. During the course of this debate, MNEs will argue that the current corporate taxation scheme of the U. S. is anti-competitive because it imposes the highest effective tax rate globally and imposes extraterritorial tax costs on U.S.-owned MNEs (U.S. MNEs) that are not imposed on their foreign-based competitors (non-U.S. MNEs). As the parent company elects the residency of the MNEs, many countries have decided to forgo taxing extraterritorial income entirely, hoping to attract the corporate headquarters, research and development, and other highly remunerated jobs of the MNEs to their country. Observing this trend, some countries have used the competitiveness argument to claim that the U.S. should avoid taxing international income entirely. Although this conclusion may carry these implications too far, important scholarship does make the case that excessive residency-based taxation of U.S. MNEs risks contributing to the trend of acquisition of U.S. MNEs by non-U.S. MNEs or U.S. MNEs expatriating, actually or constructively, because of the tax advantages afforded to foreign ownership. In response to this argument, at least six European nations have adopted so-called “patent box” regimes that provide concessionary tax rates to IP related income in an effort to attract high paying research and development jobs to their country.
Mixing Management Fee Waivers with Mayo
Authors: Grewal Amandeep S.
Published: May 2022

The 2012 presidential election cycle brought national attention to a strategy used by private equity firms, like the one founded by Mitt Romney, to convert ordinary income into long-term capital gains. Under the strategy, a private equity firm waives its right to a fixed fee from a managed fund. Instead of the fixed fee, which would be taxed at high rates, the firm receives an additional profits interest (or “waiver interest”) in the fund. If this strategy has its intended effect, income allocated to the waiver interest qualifies as low-taxed long-term capital gain.This apparent conversion of ordinary income to long-term capital gain has drawn withering criticism from several respected commentators. Private equity firms, many of which already enjoy spectacular income, have allegedly engaged in aggressive or illegal behavior by taking a waiver interest rather than a fixed fee payment. According to the commentators, the Internal Revenue Service (IRS) could successfully challenge the fee waiver strategy because (1) section 707(a)(2)(A) allows the IRS to recharacterize the transaction as one between strangers (and thus generating ordinary income), (2) a distribution regarding income allocated to the waiver interest may qualify as a “guaranteed payment” under section 707(c) and would again give rise to ordinary income, and (3) the receipt of the waiver interest qualifies as a recognition event under the common law authorities related to profits interests.
What the BEPS?
Authors: Brauner Yariv
Published: May 2022

Unprecedented attention to aggressive international tax planning has shaken the earth under the most powerful players in the world of international tax policy design. The media exposure of what Bloomberg’s calls “The Great Corporate Tax Dodge,” combined with the ever-growing discontent of civil society with the magnitude of contribution of the largest multinational enterprises to the society within which they operate, has recently forced the politicians to take action. Leaders of the strongest world economies demanded a revision of the rules of the international tax regime that would generate more revenues for their challenged coffers and would restore public trust in the system. In what is now commonly known as the Base Erosion and Profit Sharing (“BEPS”) project, the OECD has established three principles: (1) promotion of collaborative rather than competition based solutions; (2) take a holistic view of the challenges and their corresponding solutions rather than an ad hoc approach; and (3) permit the consideration of innovative solutions even when they conflict with the traditional premises of the current international tax regime. This Article reviews the progress of the BEPS project and its compatibility with the fundamental principles for reform set by the OECD with a view to influence the discourse and the outcome of the project. This Article focuses on the importance of the paradigm shift from the current emphasis on competitiveness and the perfection of competition to a collaborative international tax regime, demonstrating the desirability of such a shift and suggesting how the OECD should go about making that shift.
A Case For Simpler Gain Bifurcation for Real Estate Developers
Authors: Borden Bradley T. , Brown Nathan R. , Wagner, II E. John
Published: May 2022

This Article examines the judicially sanctioned bifurcation of real estate developers’ gain. The Article recognizes that even though some commentators oppose granting favorable tax treatment to capital gains, the law most likely will not change. With that in mind, the Article examines the all-or-nothing approach of characterizing gain from the sale of real estate as either capital gain or ordinary income. The Article rejects the all-or-nothing approach of characterizing income under the current statutory system. Instead, it embraces gain bifurcation in the second-best setting that taxes capital gains and ordinary income differently. Illustrating the policy justification for gain bifurcation and judicially sanctioned bifurcation structures, the Article recommends that lawmakers should more fully embrace gain bifurcation for real estate developers by creating a simple statutory election for bifurcating gain that would enhance equity, accuracy, and transparency of gain bifurcation. Although the Article limits its analysis to real estate developers, the idea of gain bifurcation, once improved in this area, could be a catalyst for exploring bifurcation in other areas.
The Problem of Abusive Related-Partner Allocations
Authors: Cauble Emily , Polsky Gregg D.
Published: May 2022

This Article highlights a flaw in the existing rules regarding partnership tax allocations that has not yet received sufficient attention by existing literature. Namely, the partnership tax allocation rules are implicitly premised on the assumption that partners are unrelated and, thus, transact with each other at arm’s length. As a result, related partners can and do devise tax allocation schemes that exploit the gap in the current partnership tax allocation rules to achieve unwarranted tax savings.This Article proposes to end this abuse by disallowing special allocations among related partners. Under the proposal, allocations among related partners would be required to be made on a strictly pro rata basis, in accordance with the value of each related partner’s interest in the partnership. While this proposal would rationalize the existing partnership tax allocation rules and prevent abusive related partnership allocations, it would not have any detrimental effect on real economic transactions.
Migrants with Retirement Plans: The Challenge of Harmonizing Tax Rules
Authors: Blum Cynthia
Published: May 2022

Many countries seek to encourage retirement savings for their residents by offering tax preferences for privately-operated “qualified retirement plans.” These tax preferences generally take the form of delaying taxation of contributions made to the plan and of the earnings thereon until funds are withdrawn by the participant during retirement. In a few cases, countries instead tax contributions immediately but forgo further tax. Because these rules encompass the tax treatment to be accorded throughout an individual’s lifetime, the individual is able to plan for retirement with some assurance of the eventual tax consequences. However, in recent years, it has become increasingly likely that an individual who has accumulated qualified retirement savings in one country will later migrate and retire in another country and, as a result, face unexpected tax consequences.This Article examines (1) the tax rules commonly applied by the country of emigration in order to maintain its ability to tax a departing participant in a qualified plan, and (2) the tax rules commonly applied by the country of immigration when its new resident has accumulated savings in another country’s qualified plan. The Article then analyzes how the interaction of the two countries’ rules may lead to inappropriate tax consequences and administrative burdens. In addition, it considers the various ways that bilateral treaties and model tax treaties seek to ameliorate these concerns.The Article concludes that the provisions regarding pensions in the U.S. Model Treaty achieve a reasonable degree of coordination of the two countries’ tax rules, but also could be improved in a variety of ways. The Article also explores further coordination methods in light of the improbability that bilateral treaties with the improved rules will become universal. The Article recommends adoption of a multilateral agreement for information-sharing and for taxation of qualified retirement plans and the establishment of an International Retirement Plan (“IRP”) to facilitate the operation of the multilateral agreement. The IRP would have the limited administrative role of accepting deposits from qualified individual retirement accounts established in participating countries; collecting withholding tax pursuant to the tax rules (including treaties) of the participating countries; and promoting the flow of information between the participating countries.
Designing a 21st Century Corporate Tax—An Advance U.S. Minimum Tax on Foreign Income and Other Measures to Protect the Base
Authors: Shay Stephen E. , Fleming, Jr. J. Clifton , Peroni Robert J.
Published: May 2022

The 21st Century has seen unprecedented levels of corporate tax aggressiveness and avoidance. This Article continues our exploration of second-best international tax reforms that would protect the U.S. corporate tax base and have some likelihood of adoption. In this case, we consider how a U.S. minimum tax on foreign income earned by a controlled foreign corporation should be designed to protect the United States against erosion of its corporate income tax base and to combat tax competition by low-tax intermediary countries. In the authors’ view, a minimum tax should be an interim levy that preserves the residual U.S. tax on foreign income, as distinguished from a final minimum tax that partially eliminates the U.S. residual tax. An interim minimum tax would be a significant improvement over current law and would more effectively limit incentives to seek low-taxed foreign income while ameliorating pressure to retain excess earnings abroad.To achieve the objectives of such a minimum tax, corresponding changes should be made to the U.S. corporate resident definition, the source taxation of foreign multinational corporations, and the residence taxation of U.S. portfolio investors in foreign corporations to reduce tax advantages under current law for investments in foreign corporations. These changes would reduce tax advantages for foreign parent corporate groups and thereby further protect the U.S. tax base, as well as reduce incentives for U.S. corporations to expatriate as a consequence of increased U.S. taxation of foreign income under an interim minimum tax.
Making the Internal Revenue Service Work
Authors: Forman Jonathan Barry , Mann Roberta F.
Published: May 2022

This is an Article about how to redesign the federal tax system so that the Internal Revenue Service (IRS) can administer it more effectively given that Congress is only willing to let the IRS have around 82,000 employees and a $12 billion budget. As the IRS Oversight Board and the National Taxpayer Advocate have frequently emphasized, the United States underinvests in the IRS. Underinvesting means that taxpayer services are suffering and that tax enforcement has been significantly weakened.With budget deficits for “as far as the eye can see” and the recent IRS troubles with tax-exempt political organizations, the prospects for increased funding for the IRS are remote. In this Article, we consider a variety of approaches that would make it easier for the IRS to raise and collect revenue, and we offer a number of recommendations for legislative and administrative changes. For example, we recommend simplifying the tax system, enhancing third-party reporting, and streamlining the tax-filing and dispute-resolution procedures.In short, this Article discusses how the tax system should be designed so that it can work with a modestly-funded tax administrator. Part II of this Article provides an overview of the federal tax system, and Part III of this Article provides an overview of tax administration. Part IV of this Article discusses the key problems with current tax administration. Finally, Part V of this Article offers a number of recommendations for change, including some that would require legislation and some that could be achieved administratively.
The Criminality of "Tax Planning"
Authors: Kwon Michelle M.
Published: May 2022

In recent years, the federal government has adopted an aggressive prosecution policy that targets tax advisors who help their clients evade taxes. Increased prosecutions coupled with the present-day sophistication of tax practice call for a critical examination of the willfulness standard applied to tax advisors who use the Code and Treasury regulations as part of their regular practices. This is something no previous legal scholarship has done. To establish willfulness, the government must show that a person accused of a tax crime intentionally violated a known legal duty. Because knowledge of illegality is an element of the government's tax evasion case, prosecutors must negate a defendant's claim of ignorance or misunderstanding of the law, which is evaluated subjectively. The mistake of tax law defense and the knowledge of illegality standard are anomalies since ignorance of the law usually is not an excuse. The Supreme Court, however, has said that tax law is special due to the need to protect average citizens from prosecution for innocent mistakes made due to the complexity of the tax laws. The same high standard of willfulness that applies to average citizens also applies to tax professionals. This Article aims to do two primary things. First, it demonstrates that consideration should be given to broadening the current willfulness standard as it is applied to tax advisors. Second, it evaluates the suitability of Samuel Buell and Lisa Kern Griffin's work on "consciousness of wrongdoing" as one possible approach to consider. Beyond tax scholars and practitioners, this Article may resonate with those interested in criminal law generally and white collar crime in particular, as well as those interested in issues ofprofessional responsibility.
Can Audits Encourage Tax Evasion?: An Experimental Assessment
Authors: Satterthwaite Emily
Published: May 2022

Governments and tax administrators around the world rely on the premise that audits will deter tax evasion. This Article presents experimental evidence that this premise may be, at least in part, misguided. Counterintuitively, I find that audits presented as random may induce taxpayers to cheat more. Where audits were described as being conducted at random, participants increased their levels of evasion in the tax periods immediately following the audit. This effect, however, did not plague nonrandom audits. When a separate group of participants faced audits that were presented as being nonrandom—participants were told that detected evasion would “flag” a participant for one or more future audits—participants cheated less in the periods immediately following the audit. Overall, average compliance in the nonrandom audit condition systematically and significantly dominated average compliance in the random audit condition. By revealing, under experimental conditions, strong behavioral responses to the way tax audits are presented, this Article highlights the potential enforcement benefits of being more transparent with taxpayers about the nature of audit selection.
The PACT Act as Indicium of the Due Process Validity of the Marketplace Fairness Act
Authors: Smith Eric S.
Published: May 2022

If passed into law, the Marketplace Fairness Act would impose a federal duty on out-of-state sellers to collect a state-defined and state-benefitting use tax. This unique exercise of federal power implicates due process. The Prevent All Cigarette Trafficking Act of 2009 (PACT Act) represents the only other instance in which Congress has similarly compelled state law compliance. Two circuit courts of appeals have found the PACT Act vulnerable on concerns of due process. This Article relies on the PACT Act analogue to simulate how the Marketplace Fairness Act would fare under similar scrutiny. To this end and in this uncommon context, two novel constitutional questions are considered: (1) with which sovereign, the federal government or the state, are minimum contacts measured; and (2) if measured with the state, is a single sale sufficient to meet due process thresholds?On balance, the courts and the literature suggest that minimum contacts should be measured between the out-ofstate seller and the state exacting sales tax collection responsibilities. If this is true, the Marketplace Fairness Act may violate the Due Process Clause for lack of minimum contacts as it imposes a sales tax collection responsibility on out-of-state sellers with as little as a single in-state sale. A recommendation is offered by which Congress may preemptively alleviate concerns related to the magnitude of minimum contacts.
Can We Clean This Up? A Brief Journey Through the United States Rules for Taxing Business Entities
Authors: Taylor Willard B.
Published: May 2022

This article summarizes the 80-plus year history of the US federal income tax rules for classifying business entities, concluding that they result largely from administrative and/or legislative reactions to specific problems or legislative accommodations to industry lobbying efforts and do not reflect an effort to develop a comprehensive and coherent system for taxing (or not taxing) business income. While this history does not suggest that comprehensive reform is likely, the article proposes some changes that might be considered–specifically, a single tax system for non-publicly traded businesses and rationalizing the treatment of foreign investment in the US, particularly in the case of investments in stocks, securities and real estate.
Bitcoin and the Definition of Foreign Currency
Authors: Chodorow Adam
Published: May 2022

The IRS  recently dealt a blow to Bitcoin enthusiasts by ruling that Bitcoin and other similar currencies should be treated as property–and not foreign currency–for income tax purposes. As a result, those who use bitcoins to purchase goods or services must report gain or loss on each transactionn if the bitcoins have changed value between the time they were acquired and spent. Treating Bitcoin as a foreign currency would have permitted individuals to take advantage of the $200 personal-use exemption and required taxpayers to adopt a formulaic system for tracking the basis of commingled bitcoins.The IRS's decision seems correct  as a matter of positive law, but laws can always be changed. In this Article I consid4r whether Bitcoin should be treated as a foreign currency for income tax purposes. I conclude that tax authorities should adopt a foreign currency definition that excludes bitcoin and similar currencies because (1) a broad definition ciould create significant administrative and line-drawing problems, and (2) the government has little interest in promoting alternate currencies . Nor should authorities extend the personal-use exemption to virtual currencies. In contrast, authorities should extend the basis rules applicable to foreign currency to virtual currencies to prevent taxpayers from using the basis rules to improperly reduce their tax obligations.
Accelerating Depreciation in Recession
Authors: Morrow Rebecca N.
Published: May 2022

What would you do if on January 13, 2016, you had won the $1.5 billion Powerball jackpot? The prize gives you the choice of a smaller lump sum now or the full jackpot parceled out for years to come. For the New York Times and numerous financial experts, the right choice is clear: take the money over time. While lump sums are nice, they are not worth a big discount when compared to “ultrasafe” income streams (like the Powerball annuity), especially in an “ultralow interest rate environment.”What everyone understands about Powerball seems to elude us when it comes to the United States’ largest corporate tax expenditure. “Accelerated depreciation” rules give taxpayers a lump sum deduction now, rather than the gradual deductions they would normally claim. Called tax law’s “standard method for combating recessions,” accelerated depreciation has become the most important tax policy affecting businesses because it is thought to be an effective if costly way to stimulate the economy, particularly during tough economic times.I argue, to the contrary, that accelerated depreciation debates ignore the lessons of Powerball. Like lottery payments, gradual depreciation deductions are highly certain, making them far more valuable than has been assumed. As a result, replacing them with accelerated depreciation is far less valuable than has been assumed. Further, the benefits of accelerated depreciation plummet during and following recession—precisely when these policies tend to be expanded. I illustrate these points with a numerical example exposing when real firms paid extra taxes (and the government collected extra revenue) as a result of the government’s purported stimulus program.
The Intersection of EU State Aid and US Tax Deferral: A Spectacle of Fireworks, Smoke, and Mirrors
Authors: Tavares Romero J.S. , Bogenschneider Bret N. , Pankiv Marta
Published: May 2022

The Advance Pricing Agreements or transfer pricing rulings granted to U.S. multinationals by Ireland, the Netherlands, and Luxembourg were principally designed to achieve U.S. tax deferral and not EU tax avoidance. Adverse BEPS effects within the European Union would be immaterial in comparison to the deferral of U.S. tax on residual IP-related profits, and would have occurred primarily in countries other than those charged with the granting of unlawful State aid. The Irish, Dutch, and Luxembourgish treasuries have not foregone tax revenues in favor of the U.S. multinationals they allegedly aided, which is a requirement for a finding of prohibited State aid. However, the conduct of these low-tax EU States, which enables the deferral of U.S. tax and facilitates the accumulation offinancial capital within the European Union may benefit such countries possibly at the expense of other EU Member States, and can therefore be viewed as a form of tax competition that is questionable in light of the EU Code of Conduct. Conversely, if the retroactive State aid charges were to prevail, the U.S. Treasury would forfeit its claim over unrepatriated earnings of U.S. multinationals. The significant tax policy implications for both Europe and the United States resulting from the State aid decisions by the EU Commission are explored here in detail.
Recent Developments in Federal Income Taxation: The Year 2016
Authors: McMahon, Jr. Martin J. , McGovern Bruce A.
Published: May 2022

This recent developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the most recent twelve months—and sometimes a little farther back in time if we find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail, and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted—unless one of us decides to go nuts and spend several pages writing one up. This is the reason that the outline is getting to be as long as it is. Amendments to the Internal Revenue Code generally are not discussed except to the extent that (1) they are of major significance, (2) they have led to administrative rulings and regulations, (3) they have affected previously issued rulings and regulations otherwise covered by the outline, or (4) they provide an opportunity to mock our elected representatives; again, sometimes at least one of us goes nuts and writes up the most trivial of legislative changes. The outline focuses primarily on topics of broad general interest (to us, at least)—income tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties. It deals summarily with qualified pension and profit sharing plans, and generally does not deal with international taxation or specialized industries, such as banking, insurance, and financial services.
Taxing Social Impact Bonds
Authors: Mazur Orly
Published: May 2022

An exciting new way to fund social services has recently emerged. This new financing mechanism, called a social impact bond (SIB), has the potential to help us tackle some of our nation’s most challenging social problems. Broadly speaking, a SIB is a type of “pay-for-success” contract where private investors provide the upfront capital to finance a social program, but only recoup their investment and realize returns if the program is successful. Like any new financing instrument, SIBs create numerous regulatory challenges that have not yet been addressed. One unresolved issue is the tax implications of a SIB investment. This Article argues that the current law allows for multiple possible characterizations of the SIB arrangement for tax purposes. This uncertainty as to the correct characterization of a SIB investment can affect a private investor’s ultimate tax liability and subject the investor to an unnecessary audit risk. A SIB investment can also expose a nonprofit investor to additional taxes or, possibly, even cause it to lose its tax-exempt status. Despite the potentially substantial tax implications of a SIB investment, no guidance exists on this issue. This Article is the first to analyze the federal income tax consequences to investors who participate in a SIB-funded program. It concludes that SIB arrangements should generally be classified as contingent debt instruments under the current tax law but that it may be appropriate to bifurcate the transaction in the case of nonprofit investors. To address the substantial tax uncertainty created by the current law, this Article also argues that Internal Revenue Service guidance is ultimately necessary and suggests ways to structure the SIB arrangement to minimize the risk of any negative tax implications until such guidance is issued. Doing so will hopefully encourage investors to invest in SIBs and thereby unlock an additional source of capital to fund much needed social services.
Inviting Everyone to the ACA (Risk) Pool Party: Using Advanceable, Income-Based Tax Credits to Subsidize Purchases
Authors: Pareja Mary Leto
Published: May 2022

The year 2014 marked the first opportunity for American taxpayers to receive subsidized health insurance through the Affordable Care Act’s (ACA) new Premium Tax Credit (PTC). About 4.8 million people enrolled in an ACA plan in 2014 were eligible, and nearly 97% of these claimants were approved for advance payments of the PTC. The year 2015 marked the first tax return where taxpayers received the unpleasant surprise that they must repay excess credits due to reconciliation. Advance PTC estimates turned out to be highly inaccurate, with only 8% of claimants receiving accurate advance payments. A majority, 51%, had to repay some or all of the advance payments.These figures reveal systemic problems in the PTC’s design. While the PTC’s function is to entice the uninsured to purchase insurance (and dive into insurance risk pools), reconciliation lurks as a financial danger for those who make the plunge. A shark is swimming in the pool. While many taxpayers will continue to buy insurance and claim advance PTCs, others may limit financial uncertainty by buying meager coverage and foregoing advance payments, and others may not buy any insurance. Those opting out or choosing to be underinsured are likely to be healthier. Such adverse selection is devastating to an efficient insurance market.This Article examines the PTC’s provisions and compares them with other social welfare benefits to glean lessons from their successes and failures. The Article uses those lessons to develop design goals for making the PTC a more effective program. The Article finishes with a series of concrete legislative and administrative reform proposals that could boost participation and reduce overpayments. This Article is of interest to anyone interested in health insurance reform and those interested in mechanisms for delivering targeted subsidies.
Considering "Citizenship Taxation": in Defense of FATCA
Authors: Kim Young Ran (Christine)
Published: May 2022

Inspired by Ruth Mason’s recent article, Citizenship Taxation, which reaches a general conclusion against citizenship taxation, this Article also questions citizen taxation under the same normative framework, but with a particular focus on efficiency and administrability, and takes a much less critical stance towards the merits of citizenship taxation. First, neither citizenship taxation nor residence-based taxation can completely account for the differences between residents’ and nonresidents’ ability to pay taxes under the fairness argument. Second, the efficiency argument, that citizenship taxation may distort both Americans’ and non-Americans’ citizenship decisions, is not convincing. The American citizenship renunciation rate is not particularly serious compared to other countries, and it is U.S. immigration law, not U.S. tax law, that should be blamed for obstructing highly skilled and educated immigrants. Third, despite enforcement difficulties abroad under the administrative argument, determining residence by considering all facts and circumstances in residence-based taxation would be worse than the bright-line citizenship criterion in citizenship taxation.After discussing the competing normative arguments on citizenship taxation, this Article aims to defend the administrability of citizenship taxation in conjunction with new reporting obligations. Individual taxpayers’ obligations to file Foreign Bank Account Reports (FBAR) or report under the Foreign Account Tax Compliance Act (FATCA) are not seriously onerous. The fact that citizenship taxation along with FBAR and FATCA enhances global transparency further supports the case for citizenship taxation.
Philosophische Einübung in die Theologie
Authors: Schaeffler Richard
Published: May 2022

In diesem dreibändigen Werk unternimmt Richard Schaeffler den Versuch, den »Wechselbeziehungen zwischen Philosophie und Theologie« eine konkrete und für beide Seiten förderliche Gestalt zu geben. Dabei orientiert er sich an den vier klassischen »Traktaten« der Fundamentaltheologie: der theologischen Erkenntnislehre (1. Band), der Gotteslehre (2. Band), der Lehre von Christus und von der Kirche (3. Band). Im Ersten Band entwickelt Richard Schaeffler zunächst seine Methode: Die Transzendentalphilosophie wird durch Einbeziehung sprachphilosophischer Überlegungen weiterentwickelt. Je konkrete Sprachformen machen den Aufbau einer je konkreten Erfahrungswelt möglich. Das gilt auch für die religiöse Erfahrung und ihren Bezug zur religiösen Wirklichkeit. Das Ziel dieser Darstellung ist es, auch den Theologen in eine Weise des Denkens »einzuüben«, die ihm die Erfüllung seiner Aufgabe möglich macht: der Aufgabe, die Hörer des Wortes vor fehlgeleiteten Weisen des Hörens und Verstehens zu bewahren. Der Verfasser macht deutlich: Spezifisch religiöse Formen der Sprache sind nötig, um jene besondere Dialog- und Überlieferungsgemeinschaft aufzubauen, in der die Inhalte des Glaubens über den Wechsel der Generationen hinweg weitergegeben werden können. Dies muß so geschehen, daß der Hörer des Wortes fähig wird, aufgrund eigener Glaubenserfahrung auf die Wahrheit des gehörten Wortes in seinem eigenen Anschauen und Denken die angemessene Antwort zu geben. An dieser Zielsetzung werden auch die Methoden der theologischen Auslegung normativer Texte kritisch gemessen.
Association of the Glucocorticoid Receptor Gene Polymorphisms with TGF-β1 mRNA Expression in Childhood Asthma
Authors: Pan Chenglin , Chen Yanjie , Dong Zewu , Liu Hongli
Published: May 2022

Background: Glucocorticoid (GC) is a fundamental drug used to treat asthma. GC binds to its corresponding receptor (GR) to formulate a complex that increases the production of anti-inflammatory factors and decreases the amount of pro-inflammatory mediators, covering many cytokines. GR is a nuclear receptor superfamily protein, encoded by NR3C1 gene. Studies suggest that polymorphisms of the NR3C1 gene contribute to a decreased response to GC for the treatment of asthma, even leading to drug-resistance. Also, TGF-β1 plays a central role in airway remodeling, GC significantly inhibits the production of TGF-β1, and TGF-β1 can induce GC resistance. Thus, it is possible that the polymorphisms of the NR3C1 gene can affect the expression of TGF-β1 mRNA and tissue remodeling. Objectives: This study evaluates the effect of polymorphisms (TthIII1, BclI, ER22/23EK, and N363S) of the NR3C1 GR gene on TGF-β1 mRNA expression in children with asthma. Methods: The samples of this study included 52 outpatients (age range: 6 - 14 years) with asthma referred to Huai’an First People’s Hospital, Nanjing Medical University, from January 2018 to June 2019. Meanwhile, 40 healthy volunteers were included as the control group. Results: The polymorphisms of the NR3C1 GR gene were identified using polymerase chain reaction-restriction fragment length polymorphism (PCR-RFLP), and TGF-β1 mRNA levels were measured by real-time reverse transcription (RT)-PCR. TthIII1 and TGF-β1 mRNA expression levels had significant (P = 0.011) correlations. But BclI showed no e effect on TGF-β 1 mRNA, N363S, and ER22/23EK had not been examined. Conclusions: According to the results, there was a relationship between single nucleotide polymorphisms (SNPs) of the NR3C1 gene and TGF-β1 mRNA in asthmatic children. TthIII1 CC and CT genotype have the strongest induction effect on the expression of TGF-1. The phenomenon suggests that SNPs may be involved in the asthma pathology.
Non-pharmacological Interventions for the Management of Lower Extremity Edema During Pregnancy: A Narrative Review Study
Authors: Mollaelahi Fatemeh , Shahali Shadab
Published: May 2022

Context: The most common cause of bilateral lower extremity edema during pregnancy is venous insufficiency, that is a physiological process. Although it is not a serious complication, it can lead to substantial pain, heaviness, nocturnal cramps, tingling, and numbness. In this regard, foot massage is a prominent non-pharmacological practice among healthcare providers. This study aimed to evaluate non-pharmacological interventions utilized to alleviate the symptoms of lower extremity edema during pregnancy. Evidence Acquisition: This narrative review included all randomized controlled trials during 2011 - 2021 evaluating the symptoms of lower extremity edema during pregnancy. For literature review, databases including MEDLINE, PubMed, EMBASE, Cochrane, and SID were searched using the following keywords: “management,” “pregnancy,” “obstetric”, “oedema”, “edema”, “pharmacological treatment”, “lower-extremity edema”, “late pregnancy”, and “non-pharmacological treatment”. Results: In terms of analyzed outcomes, there were substantial differences between the assessed trials. The trials had a high risk of performance and detection bias and were essentially unclear for selection bias. Finally, seven studies were included and analyzed. Compression stockings and external massage appeared to reduce lower extremity edema. Conclusions: There is not enough evidence for managing physiological lower extremity edema during pregnancy. Further trials with appropriate methodology and analysis of outcome are needed.