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TAXPROF BLOG
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Wednesday, January 25, 2023
U.S. TREASURY DEPARTMENT: DISPARITIES IN THE BENEFITS OF TAX EXPENDITURES BY
RACE AND ETHNICITY
By Paul Caron
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Lily Batchelder (Assistant Secretary for Tax Policy) & Greg Leiserson (Deputy
Assistant Secretary for Tax Analysis), Disparities in the Benefits of Tax
Expenditures by Race and Ethnicity:
This analysis, the subject of a new Office of Tax Analysis (OTA) working paper
[Tax Expenditures by Race and Hispanic
Ethnicity: An Application of the U.S. Treasury Department's Race and Hispanic
Ethnicity Imputation], finds disparities in the benefits of some tax
expenditures among White, Black, and Hispanic families. Tax expenditures are
provisions of federal law that allow a special exclusion, exemption, or
deduction from gross income or which provide a special credit, a preferential
rate of tax, or a deferral of tax liability for certain activities. Examples
include the preferential rates for capital gains, the home mortgage interest
deduction, and the Earned Income Tax Credit. OTA working papers are works in
progress intended to generate discussion and critical comment.
Researchers frequently analyze the distributional effects of tax policies across
an array of demographic information, including income, family structure, age,
and geography. However, it is challenging to perform such analysis by race and
ethnicity because there is no single data source with both tax and
race/ethnicity information. Tax liability does not depend on race or ethnicity,
and this information is not collected on tax returns.
To overcome this challenge, Treasury researchers have developed a method to
impute race and ethnicity in tax data. Under this method, researchers estimate
the probability that the primary filer—the person listed first on the tax
return—is Asian, Black, Hispanic, Native American, White, or multiple race based
on other information available in the tax data. These probabilities are then
used as weights to construct estimates for different groups. ...
The new working paper on the distribution of tax expenditures, by Julie-Anne
Cronin, Portia DeFilippes, and Robin Fisher of OTA, examines eight of the
largest individual income tax expenditures. It estimates the distribution of
benefits for certain racial and ethnic groups first on an overall per capita
basis, and then within income deciles (tenths of the income distribution).
On an overall per capita basis, the paper finds that the preferential rates for
capital gains and dividends, deduction for pass-through income, charitable
deduction, home mortgage interest deduction, and deduction for employer-provided
health insurance disproportionately benefit White families. In contrast, Black
and Hispanic families, who make up a disproportionate share of low-wage workers,
disproportionately benefit from the Earned Income Tax Credit, which is designed
to help low- to moderate-income workers and their families. Hispanic families,
who have comparatively low rates of employer-sponsored health insurance, also
disproportionately benefit from the Premium Tax Credit, which provides
assistance for the purchase of health insurance through the Marketplaces.
Finally, Hispanic families disproportionately benefit from the Child Tax Credit.
The current analysis focuses on Black, White, and Hispanic people due to high
levels of uncertainty in estimates for other groups.
Continue reading
January 25, 2023 in IRS News, Tax, Tax News, Tax Scholarship | Permalink
THE CLASH AND THE U.S. NEWS LAW SCHOOL RANKINGS: SHOULD I STAY OR SHOULD I GO?
By Paul Caron
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Lolita Buckner Inniss (Dean, Colorado), Should I Stay or Should I Go?, 26 Green
Bag 2D 19 (2013):
During the fall and winter of 2022-2023, several United States law schools
withdrew from participation in the U.S. News & World Report survey of law
schools. For over three decades the survey ranked law schools, and in doing so,
has become an increasingly influential arbiter of law school quality. Law
schools, however, have argued that the survey fails to assess the nature and
quality of schools fully or accurately, and for that reason many have ceased to
participate--they are the “goers.” Other schools have chosen to continue
participating; these are the “stayers.” While goers seem to have garnered news
headlines as heroic, autonomy-embracing figures, it is worth considering whether
the choice of going, or staying for that matter, will meaningfully alter how law
schools are viewed. The world of law, and law schools, has long been governed by
entrenched hierarchies and markers of status that exist well beyond the U.S.
News & World Report survey.
Continue reading
January 25, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
UC-SAN FRANCISCO SEEKS TO HIRE A CLINICAL TAX PROFESSOR
By Paul Caron
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UC-San Francisco Law Faculty Posting:
University of California, College of the Law, San Francisco (“UC Law SF,”
formerly, “UC Hastings Law”), located in San Francisco, California, has one of
the top-ranked clinical programs in the country, and currently operates
a Low-Income Taxpayer Clinic (LITC) in which students take lead responsibility
to directly represent low-income taxpayers with tax controversies with the
Internal Revenue Service (IRS) and/or the California Franchise Tax Board (FTB).
UC Law SF is looking to hire a full-time Long-Term Contract Faculty member
(“Associate Clinical Professor”) to serve as a member of the Faculty and Clinic
Director of the LITC. The faculty position for which UC Law SF is hiring is
partly funded by UC Law SF but contingent on continued receipt of additional
funds via an IRS grant.
In addition to supervising students in their legal representation, LITC Clinic
Director duties also include managing other tax pro bono projects at UC Law SF,
ensuring compliance and renewal of the IRS grant, and active participation in
tax-related programming of the UC Law SF Center on Tax Law. ...
Continue reading
January 25, 2023 in Legal Education, Tax, Tax Prof Jobs | Permalink
THE 50 MOST DOWNLOADED U.S. LAW PROFESSORS OF 2022
By Paul Caron
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Rank Name School Downloads 1 Cass Sunstein Harvard 43,282 2 Daniel Solove George
Washington 28,479 3 Lucian Bebchuk Harvard 27,727 4 Mark Lemley Stanford 21,131
5 Orin Kerr UC-Berkeley 19,608 6 Lawrence Trautman Texas A&M 19,518 7 Roberto
Tallarita Harvard 15,229 8 Brian Frye Kentucky 14,991 9 Bernard Black
Northwestern 13,599 10 Brandon Hasbrouck Washington & Lee 13,456 11 Danielle
Keats Citron Virginia 13,417 12 Greer Donley Pittsburgh 12,490 13 Herbert
Hovenkamp Penn 12,086 14 Rachel Rebouché Temple 11,833 15 Reuven Avi-Yonah
Michigan 11,679 16 David Cohen Drexel 11,670 17 Brian Leiter Chicago 11,411 18
J. Mark Ramseyer Harvard 10,743 19 Stephen Bainbridge UCLA 10,708 20 Dan Kahan
Yale 10,527 21 Mitu Gulati Virginia 10,472 22 Michael Klausner Stanford 10,252
23 Adrian Vermeule Harvard 9,420 24 Michael Ohlrogge NYU 9,375 25 Woodrow
Hartzog Boston University 9,236 26 Wulf Kaal St. Thomas-MN 9,202 27 Eric Posner
Chicago 8,967 28 Eric Goldman Santa Clara 8,819 29 Richard Albert Texas 8,522 30
Kevin Tobia Georgetown 8,160 31 Richard Leo San Francisco 8,154 32 David Kopel
Denver 8,023 33 Neil Richards Washington University 7,890 34 Chris Brummer
Georgetown 7,886 35 Hilary Allen American 7,588
Continue reading
January 25, 2023 in Legal Ed Rankings, Legal Ed Scholarship, Legal Education |
Permalink
THE 50 MOST DOWNLOADED U.S. TAX LAW PROFESSORS OF 2022
By Paul Caron
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Rank Name School Downloads 1 Reuven Avi-Yonah Michigan 11,679 2 Daniel Hemel NYU
4,980 3 Bridget Crawford Pace 4,235 4 Robert Sitkoff Harvard 3,074 5 Zachary
Liscow Yale 2,780 6 Dhammika Dharmapala Chicago 2,745 7 Ruth Mason Virginia
2,693 8 Richard Ainsworth Boston University 2,674 9 Darien Shanske UC-Davis
2,617 10 David Gamage Indiana 2,595 11 Louis Kaplow Harvard 2,535 12 Kyle Rozema
Washington University 2,498 13 Kimberley Clausing UCLA 2,270 14 Michael Doran
Virginia 2,154 15 Lily Batchelder NYU 2,069 16 Brad Borden Brooklyn 1,991 17
Young Ran (Christine) Kim Cardozo 1,917 18 Dan Shaviro NYU 1,849 19 David Kamin
NYU 1,726 20 Victoria Haneman Creighton 1,687 21 Margaret Ryznar
Indiana-Indianapolis 1,557 22 Edward McCaffery USC 1,454 23 Chris Sanchirico
Penn 1,432 24 Francine Lipman UNLV 1,369 25 Michael Simkovic USC 1,364 26 Paul
Caron Pepperdine 1,312 27 Victor Fleischer UC-Irvine 1,305 28 Jeremy
Bearer-Friend George Washington 1,304 29 Omri Marian UC-Irvine 1,296 30 Ari
Glogower Ohio State 1,291 31 Brian Galle Georgetown 1,230 32 Hugh Ault Boston
College 1,227 33 David Weisbach Chicago 1,194 34 Kristin Hickman Minnesota 1,146
35 Nancy McLaughlin Utah 1,130
Continue reading
January 25, 2023 in Legal Education, Scholarship, Tax, Tax Prof Rankings, Tax
Scholarship | Permalink
AFTER KATIE MAGBANUA FLIPS ON CHARLIE ADELSON, HE ASKS JUDGE TO KEEP HER
STATEMENTS TO INVESTIGATORS UNDER WRAPS UNTIL APRIL TRIAL IN DAN MARKEL'S MURDER
By Paul Caron
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Following up on my previous post, The Dan Markel Murder Case: Katie Magbanua
Flips On Charlie Adelson: Tallahassee Democrat, Charlie Adelson's Attorneys
Want Magbanua's Statements Private Until Trial:
Attorneys for accused Dan Markel murder suspect Charlie Adelson are asking a
Leon County judge to keep any statements made to investigators by his one-time
girlfriend secret until after she testifies.
The protective order filed Tuesday in Leon County Circuit Court asks that the
statements made by Katherine Magbanua — convicted of Markel’s murder last year —
to investigators late last year be kept from the public to minimize the level of
pretrial publicity.
Adelson is set to go to trial in connection with his ex-brother-in-law’s 2014
murder on charges of first-degree murder and related conspiracy and solicitation
charges in late April.
His arrest last year signaled that after two convictions and more than eight
years, investigators had gathered enough evidence to arrest the man they say was
behind Markel’s murder-for-hire.
Continue reading
January 25, 2023 in Legal Ed News, Legal Education | Permalink
Tuesday, January 24, 2023
PARSONS PRESENTS THE SHIFTING ECONOMIC ALLEGIANCE OF CAPITAL GAINS TODAY AT
COLUMBIA
By Paul Caron
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Amanda Parsons (Colorado; Google Scholar) presents The Shifting Economic
Allegiance Of Capital Gains, 26 Fla. Tax Rev. ___ (2023), at Columbia today as
part of its Davis Polk & Wardwell Tax Policy Colloquium hosted by Wojciech
Kopczuk, Michael Love, Alex Raskolnikov, and David Schizer:
Technological advances and the digitalization of the global economy have created
an economic environment beyond the imagination of the original designers of the
international tax system. Much scholarly attention has been paid to the question
of how these economic transformations should affect which country is able to tax
a multinational company’s income. But which country should be able to tax
capital gains income from the sale of that company’s shares is an important and
overlooked question.
This Article answers this question. It concludes that taxing authority over
capital gains income must be reallocated to the countries in which companies
conduct business. In our modern, digitalized economy, this reallocation is
necessary to align international sourcing rules with international tax law’s
underlying principles.
Continue reading
January 24, 2023 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops
| Permalink
YALE LAW SCHOOL RESTRICTS ACCESS TO FEDSOC FREE SPEECH PANEL TODAY TO AVOID
REPEAT OF LAST YEAR'S CONTROVERSY
By Paul Caron
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Following up on my previous post: Kristen Waggoner (General Counsel, Alliance
Defending Freedom), 'Keep the Faith': How A Hostile Encounter With Yale Law
Students Emboldened Me To Speak The Truth With Kindness: Aaron Sibarium
(Washington Free Beacon), Looking To Tamp Down Controversy, Yale Law School
Restricts Access to Free Speech Panel:
In March 2022, hundreds of students at Yale Law School disrupted a panel with
Kristen Waggoner, a conservative lawyer who has argued religious liberty cases
before the Supreme Court, arguing that her presence was a "slap in the face" to
"queer students." Yale's response to the incident left the school with egg on
its face: Though the protest clearly violated Yale's free speech policies, which
do not allow protesters to disrupt speakers, not a single student was
disciplined.
Now Waggoner is returning to Yale Law for another talk. And this time,
administrators aren't leaving anything to chance, banning press and anyone
without a Yale Law School ID, including undergraduate students, from the event.
They are also trying to prohibit covert cell phone recordings, which picked up
audio of last year's disruption. It is not clear whether the ban on media
includes the Yale Daily News, Yale's flagship student paper, whose editor in
chief, Lucy Hodgman, did not respond to a request for comment.
The event, scheduled for noon on Tuesday and hosted by the Federalist Society,
will also feature Nadine Strossen, the first female president of the American
Civil Liberties Union. Yale's draconian measures aren't sitting well with her.
She is calling the school's decision to ban the press "unjustifiable," telling
the Washington Free Beacon, "For an event that is discussing important First
Amendment issues—and is designed to illustrate Yale Law School's announced
recommitment to free speech—it is sadly ironic that elementary freedom of speech
principles are being violated."
Continue reading
January 24, 2023 in Legal Ed News, Legal Education | Permalink
SARKAR PRESENTS CAPITAL MIGRATION TODAY AT UC-SAN FRANCISCO
By Paul Caron
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Shayak Sarkar (UC-Davis; Google Scholar) presents Capital Migration at UC-San
Francisco today as part of its Center on Tax Law' Tax Policy Colloquium hosted
by Heather Field and Manoj Viswanathan:
Money moves, while migrants linger. If humans face borders, capital and
corporations are purportedly “borderless.” Yet what precisely renders capital
and reliant businesses foreign, the designation underlying migration?
This Article unpacks capital migration and the responses it elicits. It does so
by parsing capital and corporate migration’s intersection with human migration
as well as identifying conceptual parallels. As a first parallel, the
citizenship binary is insufficient to understand both human and capital
migration, as international tax law illustrates. Second, on the recurrent
question of federalism, states, alongside the federal government, possess tax
authority over foreign capital and corporations. As I argue, just as immigration
tax federalism permits nonuniformity, so might capital and corporate tax
federalism under the Foreign Commerce Clause.
Continue reading
January 24, 2023 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops
| Permalink
CHATGPT GETS C+ GRADE ON FOUR MINNESOTA LAW SCHOOL EXAMS (C- IN TAX)
By Paul Caron
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Following up on this morning's post, ChatGPT Gets B|B- Grade On Wharton MBA
Exam: Jonathan Choi (Minnesota; Google Scholar), Kristin Hickman (Minnesota;
Google Scholar), Amy Monahan (Minnesota) & Daniel Schwarcz (Minnesota; Google
Scholar), ChatGPT Goes to Law School:
How well can AI models write law school exams without human assistance? To find
out, we used the widely publicized AI model ChatGPT to generate answers on four
real exams at the University of Minnesota Law School. We then blindly graded
these exams as part of our regular grading processes for each class. Over 95
multiple choice questions and 12 essay questions, ChatGPT performed on average
at the level of a C+ student, achieving a low but passing grade in all four
courses. After detailing these results, we discuss their implications for legal
education and lawyering. We also provide example prompts and advice on how
ChatGPT can assist with legal writing.
Continue reading
January 24, 2023 in Legal Ed News, Legal Ed Scholarship, Legal Education, Tax,
Tax News | Permalink
WEISBACH POSTS THREE TAX PAPERS ON SSRN
By Paul Caron
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David A. Weisbach (Chicago; Google Scholar) has posted three tax papers on SSRN:
Against Anti-Tax Exceptionalism:
This paper examines the arguments found in what has become known as the anti-tax
exceptionalism literature. That literature seeks to apply the rules of
administrative law to tax procedures. The core claim is that the procedures used
by the Internal Revenue Service and the Treasury routinely violate the
requirements of administrative law. Secondarily, that literature argues that
this is normatively bad: the Treasury and Internal Revenue Service should not be
treated differently from other administrative agencies because the tax system is
not exceptional. Promoting the goals of administrative law, that literature
argues, requires that the tax system conform to standard procedures.
This paper addresses both claims. First, it shows that the procedures used by
tax administrators substantially comply with administrative law requirements.
The central doctrinal claim of the anti-tax exceptionalism literature is
incorrect. Second, the paper considers normative concerns of the anti-tax
exceptionalism literature, focusing on three: (i) uniformity versus
exceptionalism, (ii) information flows, and (iii) accountability. Regarding
uniformity, even assuming that current tax procedures do not comply with
administrative law requirements, uniformity would not be a desirable goal.
Administrative law is, and should remain, flexible, adapting to the needs of
widely varying agencies. Moreover, the goal of reforms to tax procedures should
be to improve the operation of the system, not conform it to procedures used by
agencies that operate in different contexts. The framing of uniformity versus
exceptionalism misstates the issue. Regarding information flows and
accountability, the remedies suggested by the anti-tax exceptionalism
literature, notably greater use of notice and comment procedures and more
supervision of tax administration by courts, are not good ways of meeting those
goals. The paper offers alternative, better methods of improving information
flows and accountability. The paper concludes that we should reject the claims
of the anti-tax exceptionalism literature on both positive and normative
grounds.
Constrained Income Redistribution and Inequality: Legal Rules Compared to Taxes
and Transfers:
Continue reading
January 24, 2023 in Scholarship, Tax, Tax Scholarship | Permalink
CHATGPT GETS B|B- GRADE ON WHARTON MBA EXAM
By Paul Caron
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Following up on this morning's post, ChatGPT Gets C+ Grade On Four Minnesota Law
School Exams: Christian Terwiesch (Wharton; Google Scholar), Would Chat GPT3
Get a Wharton MBA?:
OpenAI’s Chat GPT3 has shown a remarkable ability to automate some of the skills
of highly compensated knowledge workers in general and specifically the
knowledge workers in the jobs held by MBA graduates including analysts,
managers, and consultants. Chat GPT3 has demonstrated the capability of
performing professional tasks such as writing software code and preparing legal
documents. The purpose of this paper is to document how Chat GPT3 performed on
the final exam of a typical MBA core course, Operations Management. Exam
questions were uploaded as used in a final exam setting and then graded.
Continue reading
January 24, 2023 in Legal Ed News, Legal Ed Scholarship, Legal Education |
Permalink
Monday, January 23, 2023
CHOI PRESENTS SUBJECTIVE COSTS OF TAXATION TODAY AT FLORIDA
By Paul Caron
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Jonathan H. Choi (Minnesota; Google Scholar) presents Subjective Costs of
Taxation at Florida today as part of its Marshall M. Criser Distinguished
Faculty Workshop:
This Article introduces and estimates “subjective costs” of tax compliance,
which are costs of tax compliance that people experience directly and
individually. To measure these costs, we conducted a survey experiment assessing
how much taxpayers would pay to reduce the unpleasantness associated with filing
a tax return. The experiment revealed that taxpayers are more concerned about
inadvertent mistakes in their tax filings than by the time spent on compliance.
Respondents also only ascribed meaningful value to eliminating all tax
compliance work; they ascribed essentially no value to marginal time
savings. Additionally, eliminating tax compliance time for high-income taxpayers
and taxpayers with complex returns is not worth much more than eliminating tax
compliance time for low-income taxpayers with simple returns.
Continue reading
January 23, 2023 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops
| Permalink
LEGAL ED NEWS ROUNDUP
By Paul Caron
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* ABA Journal, Law Prof Stirs Controversy With Tweet Calling Scalia ‘Basically
A Klansman’
* Steven Chung (Tax Attorney, Los Angeles), 5 Ways US News Can Change Its
Rankings Methodology
* Connecticut Law Tribune, Live Litigation and Out-of-Court Resolutions: Yale
Law Interns Experience Both in Records Dispute With HUD
* Daily Business Review, Univ. of Miami Law Class Action & Complex Litigation
Forum Introduces New 2-Day Format
* Des Moines Register, University of Iowa Law Professor Wins Free Speech Case
After Criticizing University Doctor in Media
* Epoch Times, The Culture War in American Legal Education Is Expanding
* Law.com, Conservative Group Sends Mobile Billboards to Harass Berkeley Law
Students Accused of Antisemitism
Continue reading
January 23, 2023 in Legal Ed News, Legal Education | Permalink
NAM PRESENTS JUST TAXATION OF CRIME: SHOULD THE COMMISSION OF CRIME CHANGE ONE'S
TAX LIABILITY? AT INDIANA
By Paul Caron
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Jeesoo Nam (USC; Google Scholar) presented Just Taxation of Crime: Should the
Commission of Crime Change One's Tax Liability? at Indiana-Maurer last Friday as
part of its Tax Policy Colloquium hosted by Leandra Lederman:
The tax law treats criminals differently from non-criminals. Should it? Under
the public policy doctrine, for example, various tax deductions are disallowed
if they are closely tied to criminal activity. Criminal activity is, in multiple
ways, tax disadvantaged compared to non-criminal activity.
This Article considers a variety of possible justifications. (1) The tax
disadvantage provides an incentive not to commit crime. (2) The tax disadvantage
helps to bring deserved punishment to the criminal. (3) Criminals have given up
their right not to be taxed. (4) Criminals have taken an unfair advantage and so
must be stripped of that unfair advantage. (5) Criminals deserve to bear the
costs that they culpably and wrongfully created.
Continue reading
January 23, 2023 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops
| Permalink
U.S. NEWS LAW SCHOOL RANKINGS BOYCOTT SCORECARD (UPDATED)
By Paul Caron
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ABA Journal, US News Extends Rankings Survey Deadline; Which Law Schools Will
File?:
After years of complaints about the U.S. News & World Report’s law school
rankings, some deans started announcing in November that they would not respond
to the publication’s annual survey. And they were not swayed to opt back in when
methodology changes were shared this month.
U.S. News recently extended the survey deadline to Jan. 27. The ABA Journal
asked all ABA-accredited law schools whether they planned to submit the survey.
Out of the 110 schools that responded, 25 said they would not, and 22 were
undecided. A chart with the information can be seen here.
The table below includes the responses to the ABA Journal as well as public
announcements by law schools:
U.S. News Rank Boycott (35) Yale 1 Stanford 2 Columbia 4 Harvard 4 Penn 6 NYU
7 Virginia 8 UC-Berkeley 9 Michigan 10 Duke 11 Northwestern 13 Georgetown 14
UCLA 15 Fordham 37 UC-Davis 37 UC-Irvine 37 Maryland 47 University of Washington
49 UC-San Francisco 51 Penn State-Dickinson 58 Penn State-Univ. Park 64 St.
John's 84 New Hampshire 105 Gonzaga 116 Seattle 116 Idaho 142 Cal-Western
147-192 Campbell 147-192 John Marshall (GA) 147-192 Quinnipiac 147-192 Roger
Williams 147-192 San Francisco 147-192 South Texas 147-192 Southwestern 147-192
Western Michigan 147-192 No Boycott (53) Chicago 3 Cornell 12 Washington Univ.
16 Florida 21 Georgia 29 George Mason 30 Arizona 45 Colorado 49 SMU 58 San Diego
64 Kentucky 67 Seton Hall 73 Case Western 78 South Carolina 84 Cincinnati 88
Louisville 94 Indiana (McKinney) 98 Louisiana State* 105 Texas Tech 105 Washburn
105 Drake 111 Mississippi 111 Stetson 111 Missouri-Kansas City* 114 Chapman 118
Hofstra 118 West Virginia 118 Baltimore 122 Mercer 122 Suffolk 122
Cleveland-Marshall 127 Willamette 129 Wyoming 129 Pacific 133 South Dakota 133
Regent 142 Akron 147-192 Arkansas-Little Rock 147-192 Ave Maria 147-192 Elon
147-192 Faulkner 147-192 John Marshall (IL) 147-192 Liberty 147-192 Lincoln
Memorial 147-192 Mississippi College 147-192 North Dakota 147-192 Nova 147-192
Ohio Northern* 147-192 Oklahoma City 147-192 Southern Illinois 147-192 St.
Mary's 147-192 Toledo 147-192 Western New England 147-192
*Will answer some but not all questions
Continue reading
January 23, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
LESSON FROM THE TAX COURT: THE MEANING OF 'BUSINESS PREMISES' IN §119
By Bryan Camp
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It’s a new year. And what better way to start than with the fundamental lesson
I teach my students in our first few classes: “Everything is income.
Everything including all your non-cash receipts.” Yeah, I actually sing that to
the class, to the tune of Everything is Awesome from the Lego movie. It scans.
Treas. Reg. 1.61-1(a) emphasizes that point when it tells us that “Gross income
includes income realized in any form, whether in money, property, or services.”
So employer-provided housing is income to an employee, just as if the employer
paid the employee cash and the employee spends that cash to rent a house. But
we all know that Congress also permits taxpayers to exclude certain types of
income from taxation. Part of the art of tax practice is to try and find
applicable exclusions to reduce the gross income that must be reported. One
such exclusion is §119 which sometimes permits an exclusion for the value of
housing provided by an employer to an employee.
In Cory H. Smith v. Commissioner, T.C. Memo. 2023-12 (Jan. 12, 2023) (Judge
Toro), we learn a useful lesson about the scope of the business premises
requirement in §119: housing that is not within the physical boundaries of the
employer’s facilities is highly unlikely to qualify for the §119 exclusion. Mr.
Smith’s employer hired him to work in Pine Gap, Australia. It provided a house
for him to live in about 11 miles away from his office, in a small city outside
of Pine Gap. While Mr. Smith initially properly reported the provided housing
as income, he later got mixed up with some super aggressive tax advisors who
convinced him to amend his returns to exclude the housing. His tax advisors
told him he could do that under §911, even though that reneged a Closing
Agreement he had signed. That bum advice gave us Lesson From The Tax Court: The
Finality Of Closing Agreements, TaxProf Blog (Sept. 12, 2022). Today, Judge
Toro examines and rejects Mr. Smith’s alternative loser argument that he could
exclude housing allowance payments under §119. Details below the fold.
Continue reading
January 23, 2023 in Bryan Camp, New Cases, Scholarship, Tax, Tax Scholarship |
Permalink | Comments (0)
WILL THE U.S. NEWS LAW SCHOOL RANKINGS ARMS RACE RESUME IN THREE YEARS?
By Paul Caron
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ABA Journal, US News Extends Rankings Survey Deadline; Which Law Schools Will
File?:
U.S. News posted a letter Jan. 2 explaining that schools not submitting surveys
would still be included in the rankings. Those metrics will focus on public data
from the ABA Section of Legal Education and Admissions to the Bar, which is
responsible for law school accreditation. Schools that submit surveys will have
more detailed profiles, the letter said.
Last week, the publication informed deans about further modifications, including
eliminating employment rates, average debt at graduation and spending on
instruction from rankings criteria, according to a Jan. 13 letter shared
on TaxProf Blog. ...
People may care less about the rankings this year because of the methodological
changes, says Mike Spivey, a law school admissions consultant.
“But I’d bet that three years from now, we’re right back to the rankings arms
race. As much as people want to say the rankings are horrible and flawed,
academics and prospective students are very much interested in what their
schools ranked,” he adds.
Continue reading
January 23, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
TAXPROF BLOG WEEKEND ROUNDUP
By Paul Caron
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Saturday:
* This Week's Ten Most Popular TaxProf Blog Posts
* Larson: American Inheritance—Liberty And Slavery In The Birth Of A Nation
* Desai: The Crypto Collapse And The End Of The Magical Thinking That Infected
Capitalism
* State Department Shifts From Times New Roman To Calibri To Make Paperwork
More 'Inclusive'
Sunday:
* How A Person Of Faith Can Overcome Imposter Syndrome In Law School
* David French: How A Great American Victory Altered American Faith
* Seasons of Sorrow: The Pain Of Loss And The Comfort Of God
* The Top Five New Tax Papers
January 23, 2023 in Legal Education, Tax, Weekend Roundup | Permalink
Sunday, January 22, 2023
HOW A PERSON OF FAITH CAN OVERCOME IMPOSTER SYNDROME IN LAW SCHOOL
By Paul Caron
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David Grenardo (St. Thomas-Minnesota), How A Person of Faith Can Address
Imposter Syndrome in Law School, 37 Notre Dame J.L. Ethics & Pub. Pol'y ___
(2023):
Imposter syndrome makes people feel as if they are frauds and others will soon
find out that they do not belong. Imposter syndrome typically affects high
achievers, which includes law students and lawyers. Law schools can provide
resources and tools for law students to address imposter syndrome, but a person
of faith can approach imposter syndrome in unique ways. This Article sets forth
the various ways a law student of faith can confront and overcome imposter
syndrome.
Continue reading
January 22, 2023 in Faith, Legal Ed Scholarship, Legal Education | Permalink
DAVID FRENCH: HOW A GREAT AMERICAN VICTORY ALTERED AMERICAN FAITH
By Paul Caron
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David French (The Dispatch), How a Great American Victory Altered American
Faith:
Last week I read a tweet that led me to a book I’m now devouring at record
speed. The tweet was from my friend Skye Jethani, and it referred to a potential
link between the end of the Cold War and the rise of America’s religious nones.
I’ve been thinking about the continuing influence of the Cold War on American
life for a very long time. Our nation spent generations defined by the struggle
against Soviet communism, and that struggle (along with its rather abrupt end)
was bound to have profound effects on our national life.
The book is called Nonverts: The Making of Ex-Christian America, by a British
sociologist named Stephen Bullivant. It’s not just an important book, it’s the
best-written and most readable work of religious sociology that I’ve read in a
very long time.
At the risk of over-simplification, Bullivant’s book attempts to explain the ...
remarkable rise of religious “nones” in the United States:
Source: Grid, A Mass Exodus From Christianity Is Underway in America. Here’s
Why.
... In the chart above, a distinct data point stands out—the sharp rise of young
“nones” begins in the early 1990s. Why? That’s when the Cold War ended, and
Bullivant argues convincingly that the end of the Cold War marked the beginning
of a new era of American religion.
Continue reading
January 22, 2023 in Book Club, Faith, Legal Education | Permalink
SEASONS OF SORROW: THE PAIN OF LOSS AND THE COMFORT OF GOD
By Paul Caron
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Tim Challies, Seasons of Sorrow: The Pain of Loss and the Comfort of God (2022):
On November 3, 2020, Tim and Aileen Challies received the shocking news that
their son Nick had died. A twenty-year-old student at The Southern Baptist
Theological Seminary in Louisville, Kentucky, he had been participating in a
school activity with his fiancée, sister, and friends, when he fell unconscious
and collapsed to the ground.
Neither students nor a passing doctor nor paramedics were able to revive him.
His parents received the news at their home in Toronto and immediately departed
for Louisville to be together as a family. While on the plane, Tim, an author
and blogger, began to process his loss through writing. In Seasons of Sorrow,
Tim shares real-time reflections from the first year of grief—through the
seasons from fall to summer—introducing readers to what he describes as the
“ministry of sorrow.”
Seasons of Sorrow will benefit both those that are working through sorrow or
those comforting others:
* See how God is sovereign over loss and that he is good in loss
* Discover how you can pass through times of grief while keeping your faith
* Learn how biblical doctrine can work itself out even in life’s most difficult
situations
* Understand how it is possible to love God more after loss than you loved him
before
Matt McCullough (Christianity Today; Author, Remember Death: The Surprising Path
to Living Hope), ‘I Will Grieve but not Grumble, Mourn but not Murmur, Weep but
not Whine’: What Tim Challies Resolved in the Wake of His Son’s Sudden Death:
Continue reading
January 22, 2023 in Book Club, Faith, Legal Education | Permalink
THE TOP FIVE NEW TAX PAPERS
By Paul Caron
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There is a bit of movement in this week's list of the Top 5 Recent Tax Paper
Downloads, with a new paper debuting on the list at #5:
1. [325 Downloads] State Strategic Responses to the GloBE Rules, by Heydon
Wardell-Burrus (Oxford) (reviewed by David Elkins (Netanya; (Google Scholar)
here)
2. [185 Downloads] Textualism, The Role And Authoritativeness Of Tax
Legislative History, And Stanley Surrey, by George Yin (Virginia) (reviewed
by Sloan Speck (Colorado; Google Scholar) here)
3. [98 Downloads] Multistate Business Entities, by Andrew Appleby (Stetson;
Google Scholar) & Tomer Stein (Stetson)
4. [84 Downloads] The (Uncertain) Future of Corporate Tax Shelters, by Joshua
Blank (UC-Irvine; Google Scholar) & Ari Glogower (Northwestern; Google
Scholar) (reviewed by Michelle Layser (San Diego; Google Scholar) here)
5. [81 Downloads] Is the U.S. Already Compliant with Pillar 2?, by Reuven
Avi-Yonah (Michigan; Google Scholar)
January 22, 2023 in Scholarship, Tax, Tax Scholarship, Top 5 Downloads |
Permalink
Saturday, January 21, 2023
THIS WEEK'S TEN MOST POPULAR TAXPROF BLOG POSTS
By Paul Caron
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Legal Education:
1. NY Times Op-Ed, What If Diversity Trainings Are Doing More Harm Than Good?
2. Paul Caron (Dean, Pepperdine), Summary Of Changes To The Forthcoming U.S.
News Law School Rankings
3. Paul Caron (Dean, Pepperdine), U.S. News Provides Additional Information On
Forthcoming Law School Rankings
4. Jerry Organ (St. Thomas), The Declining 2022 Law School Transfer Market
5. Marcus Cole (Dean, Notre Dame) I Am George Floyd. Except, I Can Breathe.
And I Can Do Something.
6. Derek Muller (Iowa), Modeling and Projecting the Forthcoming U.S. News Law
School Rankings
7. NY Times, If Affirmative Action Ends, College Admissions May Be Changed
Forever
8. Paul Caron (Dean, Pepperdine), With Maryland, USF, And South Texas, 28
Schools Are Now Boycotting The U.S. News Law School Rankings
9. Paul Caron (Dean, Pepperdine), Resources For Authors Submitting Law Review
Articles In The Spring 2023 Cycle
10. Bloomberg Law, Bloomberg Law Announces Top 10 Law School Innovators
Tax:
1. Paul Caron (Dean, Pepperdine), Tax Policy in the Biden Administration
2. Paul Caron (Dean, Pepperdine), The 10 Most Downloaded Tax Articles Of 2022
3. Wall Street Journal, Why So Many Accountants Are Quitting
4. Tax Foundation, Americans Moved to Low-Tax States in 2022
5. Call For Papers, Cambridge Tax Policy Conference On Tax, Public Finance And
The Rule of Law
6. Daniel Hemel (NYU), The IRS’s Christmas Gift To Airbnb And PayPal Is A Loss
For Law-Abiding Taxpayers
7. Susan Morse (Texas), Review of Eleanor Wilking (Cornell), Independent
Contractors in Law and in Fact
8. SSRN, The Top Five New Tax Papers
9. Paul Caron (Dean, Pepperdine), 2023 Tax Prof Rankings By H-Index All
(Google Scholar)
10. Paul Caron (Dean, Pepperdine), 2023 Tax Prof Rankings By H-Index Since 2018
(Google Scholar)
Faith:
1. Inside Higher Education, Christian Law School To Start Hiring Jewish Faculty
January 21, 2023 in About This Blog, Faith, Legal Education, Tax, Weekly Top 10
TaxProf Blog Posts | Permalink
AMERICAN INHERITANCE: LIBERTY AND SLAVERY IN THE BIRTH OF A NATION
By Paul Caron
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New York Times Book Review: Can the Country Come to Terms With Its Original
Sin?, by Jon Meacham (Vanderbilt) (reviewing Edward J. Larson (Pepperdine)),
American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795
(2023):
In Edward J. Larson’s “American Inheritance,” the Pulitzer-winning historian
attempts to insert reason into a passionate public conversation.
Our own age has been hard on both reason and history. Too often the past has
been deployed to fight the ideological wars of the moment, a tendency that
reduces history to ammunition. And so Edward J. Larson’s “American Inheritance”
is a welcome addition to a public conversation, in the wake of The New York
Times’s 1619 Project, that has largely produced more heat than light.
“The role of liberty and slavery in the American Revolution is a partisan
minefield,” Larson writes. “Drawing on a popular narrative presenting the
expansion of liberty as a driving force in American history, some on the right
dismiss the role of slavery in the founding of the Republic. Appealing to a
progressive narrative of economic self-interest, and racial and gender bias in
American history, some on the left see the defense of state-sanctioned slavery
as a cause of the Revolution and an effect of the Constitution.” Larson, a
prolific historian whose “Summer for the Gods” won a Pulitzer Prize in 1998,
writes that this polarity “has opened the way for rigorous historical
scholarship” in the tradition of Edmund Morgan and Benjamin Quarles.
“American Inheritance,” then, comes to us as an effort to step into the
blood-strewn chaos of the present to calm the madness of a public stage where
passion has trumped reason. As Larson argues, liberty, slavery and racism — an
essential element of slavery — have always been entwined. “One way or another,”
he writes, “the American Revolution resulted in the first great emancipation of
enslaved Blacks in the New World.”
Yet to deny that a liberty-seeking people largely denied freedom and equality to
the enslaved is to deny a self-evident truth. Mindless celebration of the
American past is just that — mindless. But so is reflexive condemnation. The
messy, difficult, unavoidable truth of the American story is that it is
fundamentally a human one. Imperfect, selfish, greedy, cruel — and sometimes
noble. One might wish the nation’s story were simple. But that wish is in vain.
A key lesson from Larson’s narrative is that ages past were not benighted by a
lack of knowledge of the immorality of race-based slavery. To me, Larson’s
unemotional account of the Republic’s beginnings confirms a tragic truth: that
influential white Americans knew — and understood — that slavery was wrong and
liberty was precious, but chose not to act according to that knowledge and that
understanding. ...
Wall Street Journal Book Review: ‘American Inheritance’ Review: How Bondage
Shadowed Freedom, by Harold Holzer (Hunter College):
Mr. Larson, a Pepperdine University historian who won the Pulitzer Prize for a
book on the 1925 Scopes trial, submits enough evidence in his newest work to
indict almost all the Southern (and some Northern) Founders for, if nothing
else, insensitivity to the human beings they held in chains while rebelling
against the British for enslaving the American colonies.
Continue reading
January 21, 2023 in Book Club, Legal Education | Permalink
DESAI: THE CRYPTO COLLAPSE AND THE END OF THE MAGICAL THINKING THAT INFECTED
CAPITALISM
By Paul Caron
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New York Times Op-Ed: The Crypto Collapse and the End of the Magical Thinking
That Infected Capitalism, by Mihir A. Desai (Harvard Business School & Harvard
Law School; Google Scholar):
I have come to view cryptocurrencies not simply as exotic assets but as a
manifestation of a magical thinking that had come to infect part of the
generation who grew up in the aftermath of the Great Recession — and American
capitalism, more broadly.
For these purposes, magical thinking is the assumption that favored conditions
will continue on forever without regard for history. It is the minimizing of
constraints and trade-offs in favor of techno-utopianism and the exclusive
emphasis on positive outcomes and novelty. It is the conflation of virtue with
commerce. ...
Continue reading
January 21, 2023 in Tax | Permalink
STATE DEPARTMENT SHIFTS FROM TIMES NEW ROMAN TO CALIBRI TO MAKE PAPERWORK MORE
'INCLUSIVE'
By Paul Caron
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New York Times, Citing Accessibility, State Department Ditches Times New Roman
for Calibri:
Wading into a debate that has divided designers and accessibility experts for
decades, the United States Department of State said this week that it would stop
using the Times New Roman typeface, replacing it with the sans-serif typeface
Calibri.
The change will go into effect Feb. 6 and apply to all of the department’s
formal communications, Gina Abercrombie-Winstanley, the department’s first chief
diversity officer, said in an interview on Wednesday. The change will help make
the department’s paperwork more “fully inclusive,” she said. ...
Designers choosing a font are focusing more on accessibility in recent decades,
and considering whether characteristics of some popular fonts can make them more
difficult for people to read and understand. That applies especially to those
with visual or learning disabilities. ...
The department has used Times New Roman since 2004, when it switched from
another serif font, Courier New.
Washington Post, A Font Feud Brews After State Dept. Picks Calibri Over Times
New Roman:
In a cable sent Tuesday and obtained by The Washington Post, Secretary of State
Antony Blinken directed the department to use a larger sans-serif font in
high-level internal documents, and gave the department’s domestic and overseas
offices until Feb. 6 to “adopt Calibri as the standard font for all requested
papers.”
The Times (New Roman) are a-Changin,” read the subject line.
January 21, 2023 in Legal Education | Permalink
Friday, January 20, 2023
WEEKLY SSRN TAX ARTICLE REVIEW AND ROUNDUP: KIM REVIEWS SOLVING THE VALUATION
CHALLENGE: THE ULTRA METHOD FOR TAXING EXTREME WEALTH BY GALLE, GAMAGE & SHANSKE
By Christine Kim
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This week, Young Ran (Christine) Kim (Cardozo; Google Scholar) reviews Brian D.
Galle (Georgetown; Google Scholar), David Gamage (Indiana Maurer; Google
Scholar), & Darien Shanske (UC Davis; Google Scholar), Solving the Valuation
Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. __ (2023).
It is well known that our income tax system is based on a realization approach
which avoids valuation problems but enables the rich to pay little in taxes.
Brian Galle (Georgetown), David Gamage (Indiana), and Darien Shanske (UC Davis)
address this inequality brilliantly in their article Solving the Valuation
Challenge: The ULTRA Method for Taxing Extreme Wealth, 72 Duke L.J. __
(forthcoming 2023). To solve the valuation problem, they propose that
governments take payments from the rich by receiving notional equity interests,
called "ULTRAs." ULTRA stands for unliquidated tax reserve accounts and is
similar to a government claim on a portion of the stock of a business.
Continue reading
January 20, 2023 in Christine Kim, Scholarship, Tax, Tax Scholarship, Weekly
SSRN Roundup, Weekly Tax Roundup | Permalink
WEEKLY LEGAL EDUCATION ROUNDUP
By Scott Fruehwald
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* Bloomberg Law, Bloomberg Law Announces Top 10 Law School Innovators
* Paul Caron (Dean, Pepperdine), Resources For Authors Submitting Law Review
Articles In The Spring 2023 Cycle
* Paul Caron (Dean, Pepperdine), Summary Of Changes To The Forthcoming U.S.
News Law School Rankings
* Paul Caron (Dean, Pepperdine), With Maryland, USF, And South Texas, 28
Schools Are Now Boycotting The U.S. News Law School Rankings
* Fordham Law News, U.S. News & World Report Participation: A Message from Dean
Matthew Diller
* Harvard Medical School, HMS Withdraws From U.S. News & World Report Rankings
* Lolita Buckner Innis (Colorado), Should I Stay or Should I Go?
* Inside Higher Education, Sea Change or Small Step Toward Interreligious
Inclusion?
Continue reading
January 20, 2023 in Legal Education, Scott Fruehwald, Weekly Legal Ed Roundup |
Permalink
MCCAFFERY PRESENTS THE PARADOX OF TAXING THE RICH TODAY AT FLORIDA
By Paul Caron
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Edward McCaffery (USC; Google Scholar) presents The Paradox of Taxation the Rich
at Florida today as part of its Tax Colloquium Series hosted by Charlene Luke:
In the Summer of 2021, stories broke across the mainstream American media that
the wealthiest Americans, such as Jeff Bezos and Elon Musk, were
paying no income taxes, perfectly legally, under the simple tax-planning advice
to Buy, Borrow, Die. By the Fall, politicians were running out proposals to
address the embarrassment, such as Senator Ron Wyden’s “Billionaire’s Tax.” Yet
just a year later, in the Summer of 2022, as President Joe Biden and his fellow
Democrats were trying to salvage some semblance of Biden’s once-ambitious “Build
Back Better” agenda prior to the Congressional midterm elections, came word that
little would be done to reverse course on recent and longstanding American tax
policy: There would be only modest and largely symbolic tax increases on the
rich, and no change at all to any of the planks of Buy, Borrow, Die.
Continue reading
January 20, 2023 in Colloquia, Scholarship, Tax, Tax Scholarship, Tax Workshops
| Permalink
NEXT WEEK’S TAX WORKSHOPS
By Paul Caron
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Monday, January 23: Jonathan H. Choi (Minnesota; Google Scholar) will present
Subjective Costs of Taxation as part of the Florida Marshall M. Criser
Distinguished Faculty Workshop. If you would like to attend, please RSVP here.
Tuesday, January 24: Shayak Sarkar (UC-Davis; Google Scholar) will present
Capital Migration as part of the UC-San Francisco Tax Policy Colloquium. If you
would like to attend, please contact Manoj Viswanathan.
Tuesday, January 24: Amanda Parsons (Colorado; Google Scholar) will present The
Shifting Economic Allegiance Of Capital Gains as part of the Columbia Davis Polk
& Wardwell Tax Policy Colloquium. If you would like to attend, please contact
David Schizer.
Wednesday, January 25: Susie Morse (Texas; Google Scholar) will present Out of
Time: APA Challenges to Old Tax Guidance and the Six-Year Default Limitations
Period as part of the Northwestern Advanced Topics in Taxation Colloquium. If
you would like to attend, please contact Gregg Polsky.
Thursday, January 26: Jan Brueckner (UC-Irvine; Google Scholar) will present
Taxes and Telework: The Impacts of State Income Taxes in a Work-from-Home
Economy (with David R. Agrawal (Kentucky; Google Scholar)) as part of the UCLA
Colloquium on Tax Policy and Public Finance. If you would like to attend, please
contact Kirk Stark or Jason Oh.
Thursday, January 26: Ruth Mason (Virginia; Google Scholar) will present Bibb
Balancing, 91 Geo. Wash. L. Rev. __ (2023) (with Michael S. Knoll (Penn)) as
part of the OMG Transatlantic Tax Talks. No RSVP is required for this event.
Thursday, January 26: Yariv Brauner (Florida; Google Scholar) will present
Taxation of Information and the Data Revolution as part of a celebration of his
academic contributions and appointment to Hugh Culverhouse Eminent Scholar Chair
in Taxation. If you would like to attend, please contact Charlene Luke.
Continue reading
January 20, 2023 in Colloquia, Legal Education, Scholarship, Tax, Tax
Scholarship, Tax Workshops | Permalink
BLOOMBERG LAW'S TOP 10 LAW SCHOOL INNOVATORS
By Paul Caron
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Bloomberg Law, Bloomberg Law Announces Top 10 Law School Innovators:
Bloomberg Law’s inaugural Law School Innovation Program recognizes law schools
whose innovative programs are advancing new approaches to student instruction,
legal technology, experiential learning, and other facets of legal education.
And we are showcasing 10 innovations in particular that are leading the way. ...
Innovators hailing from more than 60 schools in more than 25 states applied to
the program. ... Applications were evaluated by a select team of practicing
attorneys, legal technology and legal operations professionals, in-house
counsel, recent law school graduates, and Bloomberg Law experts who have worked
with and alongside law firms, businesses, and academic institutions.
The Top 10
The panel’s evaluations yielded a list of 10 finalists, based on the criteria of
innovation, impact on students, ability to advance the legal industry, and
replicability. They are:
Continue reading
January 20, 2023 in Legal Ed News, Legal Education | Permalink
TAX POLICY IN THE BIDEN ADMINISTRATION
By Paul Caron
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* Axios, Wealth Tax Prospects Doubtful — But Tax Reform Isn't Dead
* Bloomberg, Global Tax Reform May Add $250 Billion a Year to Public Coffers
* Bloomberg, Oxfam: Richest 1% of People in UK Now Wealthier Than 70% of
Population Combined
* Bloomberg, Supreme Court Rejects Appeal on Use of Covid Aid for Tax Cuts
* Bloomberg, Tax-the-Rich Blue States Want to Leave Wealthy ‘Nowhere to Hide’
Continue reading
January 20, 2023 in Tax, Tax News, Tax Policy in the Biden Administration |
Permalink
Thursday, January 19, 2023
ZHANG: ANTIDISCRIMINATION AND TAX EXEMPTION
By Paul Caron
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Alex Zhang (Law Clerk, U.S. States Court of Appeals for the Ninth Circuit; J.D.
2021, Yale), Antidiscrimination and Tax Exemption, 107 Cornell L. Rev. 1381
(2022):
The Supreme Court held, in Bob Jones University v. United States, that
violations of fundamental public policy—including race discrimination in
education—disqualify an entity for tax exemption. The holding of the case was
broad, and its results cohered with the ideals of progressive society: the
government ought not to subsidize discrimination, in particular of marginalized
groups. But almost four decades later, the decision has never realized its
liberal, antidiscriminatory potential. The IRS has limited implementation to the
narrowest facts of the case. The scholarly literature has not formulated a
systematic account of how to enforce the Bob Jones regime, in light of the
expansion of antidiscrimination protections and the Court’s reasoning that is
deeply rooted in common-law charity. At the same time, tax-exempt entities
engage in a smattering of discriminatory activities, often with impunity.
Continue reading
January 19, 2023 in Scholarship, Tax, Tax Scholarship | Permalink
NY TIMES OP-ED: WHAT IF DIVERSITY TRAININGS ARE DOING MORE HARM THAN GOOD?
By Paul Caron
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New York Times Op-Ed: What if Diversity Trainings Are Doing More Harm Than
Good?, by Jesse Singal:
Diversity trainings have been around for decades, long before the country’s
latest round of racial reckoning. But after George Floyd’s murder — as companies
faced pressure to demonstrate a commitment to racial justice — interest in the
diversity, equity and inclusion (D.E.I.) industry exploded. The American market
reached an estimated $3.4 billion in 2020.
D.E.I. trainings are designed to help organizations become more welcoming to
members of traditionally marginalized groups. Advocates make bold promises:
Diversity workshops can foster better intergroup relations, improve the
retention of minority employees, close recruitment gaps and so on. The only
problem? There’s little evidence that many of these initiatives work. And the
specific type of diversity training that is currently in vogue — mandatory
trainings that blame dominant groups for D.E.I. problems — may well have a
net-negative effect on the outcomes managers claim to care about.
Continue reading
January 19, 2023 in Legal Education | Permalink
DOOLING & HICKMAN: APPLYING THE REGULATORY REPORT CARD TO TAX REGULATIONS
By Paul Caron
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Bridget C.E. Dooling (George Washington; Google Scholar) & Kristin E. Hickman
(Minnesota; Google Scholar), Applying the Regulatory Report Card to Tax
Regulations:
An invited contribution to an issue of the Journal of Benefit-Cost Analysis
honoring the work of the late Dr. Jerry Ellig, this essay recognizes and draws
upon the Regulatory Report Card methodology developed by Ellig and Patrick
McLaughlin to evaluate the quality of regulatory impact analysis published by
federal government agencies in conjunction with notice-and-comment rulemaking.
The essay anticipates a forthcoming study of changes to tax regulatory practices
as a result of a 2018 Memorandum of Agreement between the Treasury Department
and the Office of Information and Regulatory Affairs--a study the authors
discussed and hoped to conduct with Ellig before he passed away.
Continue reading
January 19, 2023 in Scholarship, Tax, Tax Scholarship | Permalink
TEXAS TECH LAW SCHOOL INFORMS U.S. NEWS OF 'SUBSTANTIAL' MISSTATEMENT OF ITS
STUDENT LOAN DATA THE PAST THREE YEARS
By Paul Caron
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Texas Tech Law School informed U.S. News today that it submitted incorrect data
on the average debt of its graduates for each of the past three years:
The error was originated three years ago by the main campus Office for Student
Financial Aid and Scholarships, which collects this data for the Law School. The
Law School relies reasonably and in good faith on our campus partners in
Financial Aid to collect accurate data for us for our rankings purposes. We were
very surprised and disappointed to learn that we received inaccurate data from
this office under its prior leadership. ...
As Dean, I take full responsibility for the Law School’s failure to uncover the
Office of Student Financial Aid’s reporting errors and ensure a correction
before the Law School in turn reported incorrect data to US News. In particular,
I should have implemented a more extensive and systematic set of review
procedures for this area, which would have uncovered the error, and placed less
reliance on the Office of Student Financial Aid’s review process and reports.
The misreport on this metric was substantial. The corrected debt numbers are the
following: For 2019, the correct average debt number was $98,695, and the
incorrect reported number was $62,583. For 2020, the correct average debt number
was $86,023, and the incorrect reported number was $56,898. For 2021, last year,
the correct average debt number was $85,956, and the incorrect reported number
was $60,088. While these numbers were misreported to US News, they were never
directly marketed to applicants by the Law School. We also remain a lower debt
law school, and our corrected debt number for 2021 is still well below the
national average for debt and a lower number than all but one of the other law
schools in this state reporting average debt to US News.
Continue reading
January 19, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
RAGHAVAN: THE CASE AGAINST THE DEBT TAX
By Paul Caron
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Vijay Raghavan (Brooklyn), The Case Against the Debt Tax, 91 Fordham L. Rev. __
(2023):
Americans are increasingly agitating for debt relief. In the last decade, there
have been national campaigns to cancel student debt, credit card debt, and
mortgage debt. These national campaigns have paralleled local efforts to cancel
taxi medallion debt, carceral debt, and lunch debt. But as the public
increasingly pursues broad-scale debt relief outside bankruptcy, they face an
important institutional obstacle: cancelled debt is generally taxable.
Continue reading
January 19, 2023 in Scholarship, Tax, Tax Scholarship | Permalink
WITH MARYLAND, USF, AND SOUTH TEXAS, 28 SCHOOLS ARE NOW BOYCOTTING THE U.S. NEWS
LAW SCHOOL RANKINGS
By Paul Caron
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Maryland Carey Law Remains Focused on True Excellence:
After a great deal of thoughtful discussion with a wide variety of stakeholders,
Maryland Carey Law has made the decision not to provide U.S. News & World
Report (USNWR) with proprietary data about the institution in connection with
USNWR’s Best Law Schools rankings, scheduled to be published this spring. As one
of the oldest and most innovative law schools in the country, Maryland Carey Law
has long provided students with the highest quality legal education -- one that
trains them to become talented, ethical lawyers who care about justice. We will
continue to do this work in the months and years to come.
We applaud USNWR’s willingness to reevaluate its flawed rankings methodology. In
light of the company’s decision to rank all law schools on publicly available
data only, Maryland Carey Law does not see the need to voluntarily provide
additional institutional data for USNWR to sell. We look forward to working in
good faith with USNWR in the years to come to arrive at a rankings methodology
that more accurately reflects the wide range of values embraced by individual
law schools, including fulfilling the aspirations and needs of the diverse range
of students we all attract and educate. In the meantime, Maryland Carey Law will
remain focused upon the excellence of its faculty, staff, and students, and upon
its valued partnerships with the university, the city, the state, and beyond.
USF Law Will No Longer Provide Data to U.S. News:
Continue reading
January 19, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
Wednesday, January 18, 2023
EYAL-COHEN: THE (TAX) POLICY ENTREPRENEUR
By Paul Caron
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Mirit Eyal-Cohen (Alabama; Google Scholar), The (Tax) Policy Entrepreneur, 86
Law & Contemp. Probs. __ (2023):
The construct of entrepreneurship represents a mindset and strategy for
utilizing uncertainties to create change in the marketplace. This essay,
however, considers entrepreneurship in the context of government policy
apparatus. Termed “policy entrepreneurship,” the phenomenon is not concerned
with recruiting lawmakers to pass legislation or develop a political economic
strategy, but is practiced by advocating for optimal policy outcomes via the
legislative process. It entails crafting rules and shaping public programs while
maintaining flexibility and harnessing political, administrative, and legal
forces to advance public-benefit agendas.
Continue reading
January 18, 2023 in Scholarship, Tax, Tax Scholarship | Permalink
MULLER MODELS AND PROJECTS FORTHCOMING U.S. NEWS LAW SCHOOL RANKINGS
By Paul Caron
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Derek Muller (Iowa; Google Scholar), Modeling and Projecting USNWR Law School
Rankings Under New Methodologies:
First, the criteria. USNWR disclosed that it would no longer use
privately-collected data and instead rely exclusively on publicly-available
data, with the exception of its reputational survey data. (You can see what Dean
Paul Caron has aggregated on the topic for more.) It’s not clear whether USNWR
will rely on public data other than the ABA data. It’s also not clear whether it
will introduce new metrics. It’s given some indications that it will reduce the
weight of the reputational survey data, and it will increase the weight of
output metrics. ...
One last step was to offer a potential high-low range among the rankings. For
each of the five models, I gave each school a rank one step up and one step
down, to suggest some degree of uncertainty in how USNWR calculates, for
instance, the 10-month employment positions, or diploma privilege admission for
bar passage, among other things. That gave me 15 potential rankings—a low,
projected, and high among each of the five models. I took the lowest of the low
and the highest of the high for a projected range. With high degrees of
uncertainty, this range is an important caveat.
Below are my projections.
Continue reading
January 18, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
BARRY SEEKS TO HIRE AN ENTRY LEVEL OR LATERAL TAX PROF
By Paul Caron
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Barry Law Faculty Posting:
Barry University School of Law is seeking to fill one or more full-time,
tenure-track faculty positions beginning in the Fall 2023 semester. Areas of
particular interest include Legal Research and Writing (LRW), Constitutional
Law, Florida Civil Practice, Florida Constitutional Law, Tax, and Wills, Trusts,
& Estates. Candidates with a focus in other doctrinal areas may also be
considered.
Continue reading
January 18, 2023 in Legal Education, Tax, Tax Prof Jobs | Permalink
LAW SCHOOL RANKINGS REVOLT SPREADS TO MEDICAL SCHOOLS: #1 HARVARD WILL NOT SEND
DATA TO U.S. NEWS
By Paul Caron
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Harvard Medical School, HMS Withdraws From U.S. News & World Report Rankings:
Following careful consideration and consultation with colleagues and
stakeholders across Harvard Medical School and beyond, I write today to announce
that HMS will no longer submit data to U.S. News & World Report (USNWR) to
support their “best medical schools” survey and rankings. ...
I have contemplated this decision since becoming dean six years ago. The
courageous and bold moves by my respected colleague Dean John Manning of Harvard
Law School and those of peer law schools compelled me to act on behalf of
Harvard Medical School. What matters most to me as dean, alumnus, and faculty
member is not a #1 ranking, but the quality and richness of the educational
experience we provide at Harvard Medical School that encourages personal growth
and lifelong learning.
Continue reading
January 18, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
SOLED & ALM: IS A TAX-MOTIVATED BONANZA OF ELECTRIC VEHICLE GIFTS ON THE
HORIZON?
By Paul Caron
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Jay A. Soled (Rutgers; Google Scholar) & James Alm (Tulane; Google Scholar), Is
a Bonanza of Electric Vehicle Gifts on the Horizon?, 178 Tax Notes Fed. 257
(Jan. 9, 2023):
In this article, Soled and Alm argue that some provisions of the Inflation
Reduction Act could encourage taxpayers to make automobile-related gifts, not
out of generosity but as part of a strategy designed to achieve significant
income tax savings. ...
Conclusion
In light of taxpayers’ tendencies to make the most of available tax-saving
opportunities, automobile gift-giving may soon become a trend. This phenomenon
would subvert the IRA’s legislative intent of having the clean vehicle credit
accrue to taxpayers of moderate economic means, and it would cost the treasury
lost revenue and undermine taxpayer confidence in the tax system.
Continue reading
January 18, 2023 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink
ROGER WILLIAMS IS 25TH LAW SCHOOL TO BOYCOTT U.S. NEWS RANKINGS
By Paul Caron
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Roger Williams University School of Law Withdraws from US News Rankings:
Dear Roger Williams University School of Law Family,
After careful consideration and consultation with key constituents, Roger
Williams University School of Law has made the decision not to participate in
the US News and World Report ranking process this year. Other law school deans
have spoken eloquently about flaws in the formula currently used by US News for
its law school rankings, and I share their concerns. While academic rankings can
provide consumers with important information, US News’ current formula and
announced changes continue to devalue key parts of what we believe make for
great law schools.
RWU Law has always been driven by a social justice mission, and we care deeply
about the people and communities we serve. We have been an access school for
first-generation students, and we are proud to improve the lives of our students
and the communities we serve, including the legal profession. We celebrate our
public interest and pro bono culture. In contrast, the current US News ranking
formula incentivizes law schools to make key decisions—on budgetary matters,
student admissions, academic programs, public service, and more—that undermine
these core values and are not always in the best interests of students.
Continue reading
January 18, 2023 in Law School Rankings, Legal Ed News, Legal Ed Rankings, Legal
Education | Permalink
Tuesday, January 17, 2023
MORSE REVIEWS WILKING'S INDEPENDENT CONTRACTORS IN LAW AND IN FACT
By Paul Caron
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Susan Morse (Texas; Google Scholar), Terms of Employment (JOTWELL) (reviewing
Eleanor Wilking (Cornell), Independent Contractors in Law and in Fact: Evidence
from U.S. Tax Returns, 117 Nw. U. L. Rev. 731 (2022):
Under tort and agency common law, the more control a firm exerts over its
workers, the more likely that workers will be classified as employees rather
than independent contractors. The need to determine control prompts a
line-drawing exercise and offers opportunities for firms and/or workers to
manipulate the result, rather than choosing the best abstract analysis on the
facts. In Independent Contractors in Law and in Fact: Evidence from U.S. Tax
Returns, Eleanor Wilking constructs a huge tax-return-based dataset and uses it
to show that firms appear to game the employee/independent contractor
distinction, that evidence of manipulation is stronger when lower-income workers
are involved, and that the tendency to classify workers as independent
contractors has likely increased over time.
A lot turns on whether a worker is an “employee.” Access to retirement plans,
health insurance, certain government benefits and antidiscrimination protections
follow from employee status. Tax, tort, contract, intellectual property and
other legal results often differ based on whether a worker is an employee. Most,
although not all, legal features require firms to offer more protections and
benefits for employees, as opposed to independent contractors. Thus a firm’s
incentive to manipulate generally tilts towards independent contractor
classification, holding all else equal, particularly for lower-income workers.
Continue reading
January 17, 2023 in Scholarship, Tax, Tax Scholarship | Permalink
LEGAL ED NEWS ROUNDUP
By Paul Caron
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* ABA Journal, AI Program Earned Passing Bar Exam Scores On Evidence And Torts;
Can It Work In Court?
* ABA Journal, Weekly Briefs: Man Pleads Guilty In Cold-Case Murder Of Law
Librarian; Near-Total Abortion Ban Upheld In Idaho
* Daily Report Online, Emory Law Launches Environmental DEI Initiative
* Dakota News Now, South Dakota’s Chief Justice Rails on Proposal to End Bar
Exam For Law School Graduates
* Florida A&M Law School, FAMU Law Offers Pop-up Legal Clinic Designed to Help
Underserved Residents
* Fort Worth Business Press, Texas Wesleyan President Slabach to become dean of
law school at University of Mississippi
* Jerusalem Post, UC Berkeley Law Earns a Failing Grade in Protecting Jewish
Students
Continue reading
January 17, 2023 in Legal Ed News, Legal Education | Permalink
2023 TANNENWALD TAX WRITING COMPETITION
By Paul Caron
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The Theodore Tannenwald, Jr. Foundation for Excellence in Tax
Scholarship and American College of Tax Counsel are sponsoring the 2023
Tannenwald Writing Competition Announcement.
Named for the late Tax Court Judge Theodore Tannenwald, Jr., and designed to
perpetuate his dedication to legal scholarship of the highest quality, the
Tannenwald Writing Competition is open to all full- or part-time law school
students, undergraduate or graduate. Papers on any federal or state tax-related
topic may be submitted in accordance with the Competition Rules.
Prizes:
* 1st Place: $5,000
* 2nd Place: $2,500
* 3rd Place: $1,500
Deadline: July 10, 2023
Continue reading
January 17, 2023 in Legal Education, Tax, Teaching | Permalink
ORGAN: THE DECLINING 2022 LAW SCHOOL TRANSFER MARKET
By Jerry Organ
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This blog posting updates my blog postings over the last several years regarding
what we know about the transfer market, for example 2021 and 2020. With
the ABA’s posting of the 2022 Standard 509 Reports, we now have several years of
more detailed transfer data from which to glean insights about the transfer
market among law schools.
Numbers of Transfers and Percentage of Transfers Continue to Decline to the
Lowest Levels in the Last Decade
As shown in Table 1 below, the number of transfer students received by law
schools in 2022 decreased to 1231, the smallest number of transfers in the last
decade. For the last several years, the transfer market has been shrinking,
having declined from 5.5% in 2014, to 4.7% in 2016, to 4.0% in 2018, and now
3.0% in 2022. Aside from a slight bump in 2017, and another bump in 2020, this
drop reflects a continuation of a gradual decline in transfers over the last
several years — from more than 2100 to less than 1300 (down nearly 40%) and from
5.5% of first-years in the previous fall to 3.0% (down nearly 50%).
Table 1 — Number of Transfers and Percentage of Transfers from 2014-2022
2014
2015
2016
2017
2018
2019
2020
2021
2022
Number of Transfers
2187
1979
1749
1797
1494
1294
1612
1375
1231
Previous Year First Year Enrollment
39,800
38,000
37,100
37,100
37,300
38400
38500
38200
41700
% of Previous First-Year Total
5.5%
5.2%
4.7%
4.8%
4.0%
3.4%
4.2%
3.6%
3.0%
After an increase in transfers in 2020, we have seen declines in 2021 to 1375
and 3.6% and 2022 to 1231 and 3.0% — the lowest number and percentage in a
decade. This may partly be attributable to the larger enrollment among
first-years in fall 2021, which enabled some law schools both to grow the size
of their first-year class while simultaneously increasing their median LSAT.
With this larger group of first-year students in fall 2021, some schools may
have dialed back their transfer classes a little bit in the summer of 2022 due
to limited capacity.
SOME LAW SCHOOLS CONTINUE TO DOMINATE THE TRANSFER MARKET
Continue reading
January 17, 2023 in Jerry Organ, Law School, Legal Ed News, Legal Education |
Permalink
BLUE J PREDICTS: CONFLICTING DUTIES AND THE TRUST FUND RECOVERY PENALTY
By Paul Caron
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Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J
Legal) & Ann Velez (Senior Legal Research Associate, Blue J Legal), Cashaw:
Conflicting Duties and the Trust Fund Recovery Penalty, 177 Tax Notes Fed. 1257
(Nov. 28, 2022):
Employers in the U.S. are required to help the federal government in its tax
administration endeavors by periodically withholding and remitting employees’
payments for income taxes, Social Security, and Medicare. That duty is special:
Under section 7501(a), employers hold employee payroll tax withholdings in trust
for the United States. For this reason, payroll withholdings are sometimes
referred to as “trust fund taxes.” One of the tools the IRS uses to collect
withholdings when employers fail to remit them on time (or at all) is the trust
fund recovery penalty (TFRP).
A person can be found responsible and willful for failure to remit even if they
were neither a director nor an officer of the employer. And a person can be
saddled with TFRP liability even if they experienced a conflict between the duty
to remit taxes and other duties, such as obedience to their employer,
obligations under state law, their professional code of conduct, or their moral
convictions. Litigated TFRP cases frequently reflect these kinds of challenging
circumstances. Cashaw [v. Commissioner, T.C. Memo. 2021-123 (Oct. 27, 2021)], is
no exception. In October 2021 the Tax Court, while expressing sympathy for
Pamela Cashaw’s situation as an administrator of a cash-strapped hospital, noted
that it was a court of law, not equity, and ruled that she must be held
personally liable for the TFRP in the approximate amount of $173,000. The case
has been appealed to the Fifth Circuit.
We assess Cashaw’s prospects on appeal.
Continue reading
January 17, 2023 in Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink
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