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Zarin v. Commissioner Revisited and Some Methodologies for Determining COD Income
Get PDFThe focus of this Article is a revisit of a very well-known and much written about Third Circuit Court of Appeals decision, Zarin v. Commissioner, concerning whether the taxpayer had COD income. Zarin dealt with whether a compulsive and unlucky gambler could avoid COD income when he settled with the casino for substantially less than what he owed. Along with a plethora of diverse third-party assessments of the case, the judges who heard the case and its appeal were also divided. The Tax Court opinion was decided by an eleven to eight vote for the Internal Revenue Service (IRS), with three separate dissenting opinions, and was followed by a Third Circuit reversal, with a two to one split of the judges. In a much-criticized decision, the divided Third Circuit Court of Appeals reversed a split Tax Court and held that the hapless gambler did not have discharge of indebtedness income. While many esteemed scholars have made plausible arguments to the contrary, this Article concludes that Zarin should have been determined to have COD income from his settlement with the casino. Zarin was not subject to tax when he received the gambling chips because both parties had an understanding it would be repaid. This tax benefit he received at the time of the loan resulted in COD income upon the indebtedness’ settlement for less than what was owed, unless an exception applied, and none should have in this case.
This Article will also examine some of the theories for determining if a taxpayer has COD income and how they relate to Zarin. The loan proceeds methodology, or a variation thereof, is the proper means of establishing whether a taxpayer has COD income, prior to considering whether any of the exceptions apply. The freeing of assets and the Kerbaugh-Empire form of the whole transaction approaches should no longer be followed by the courts
Platform Immunity Redefined
Get PDFSection 230 of the Communications Decency Act (CDA) immunizes “interactive computer services” from most claims arising out of third-party content posted on the service. Passed in 1996, section 230 is a vital law for allowing free expression online, but it is ill-suited for addressing some of the harms that arise in the modern platform-based economy.
This Article proposes to redefine section 230 immunity for sharing economy platforms and online marketplaces by tying internet platform immunity to the economic relationship between the platform and the third party. It primarily focuses on one key flaw of section 230: its binary classification of online actors as either “interactive computer services” (who are immune under the statute) or “information content providers” (who are not immune). This binary classification, while perhaps adequate for the internet that existed in 1996, fails to account for the full range of economic activities in which modern platforms now engage.
This Article argues that courts applying section 230 should incorporate joint enterprise liability theory to better define the contours of platform immunity. A platform should lose immunity when there exists a common business purpose, specific pecuniary interest, and shared right of control in the underlying transaction giving rise to liability. Sharing economy platforms, such as Airbnb and Uber, and online marketplaces, such as Amazon, are primary examples of platforms that may function as joint enterprises. By using joint enterprise theory to redefine platform immunity, this Article seeks to promote greater fairness to tort victims while otherwise retaining section 230’s core free expression purpose
Frankly, It\u27s a Mess: Requiring Courts to Transparently Redline Affidavits in the Face of Franks Challenges
Get PDFPart I provides a brief overview of the Fourth Amendment, probable cause, and the exclusionary rule. Part II discusses Franks v. Delaware, the development of the challenge’s framework, and subsequent expansions to the doctrine made by the lower courts. Next, Part III argues that, despite the aforementioned expansions, courts have consistently weakened Franks. Notably, the Supreme Court refuses to consider Franks issues, including the multitude of splits over which standard of review is applicable. Moreover, some circuits have developed their own minute rules that have chiseled away at the effectiveness of a Franks challenge. Part IV proposes that the solution is to require judges to “redline” the challenged affidavit and appended it to the final judicial opinion. Part V addresses the potential critiques of this course of action, none of which this Note finds entirely convincing. Ultimately, this Note asserts that appending a corrected affidavit is a small price to pay for clarity
Fine(ing) Wine: Challenging Direct-Shipment Licensing Fees on Dormant Commerce Clause Grounds
Get PDFThis Note advocates for a constitutional challenge to state direct-to-consumer licensing fees, arguing that the licensing fees impose an undue burden on interstate commerce. To this end, this Note will apply the Supreme Court’s dormant Commerce Clause jurisprudence to state DtC wine licensing fees. Under this framework, the Court has almost always invalidated state laws that discriminate against out-of-state interests absent a showing that the law is necessary to achieve a legitimate purpose other than economic protectionism. If the state law is not found to discriminate against out-of-state interests, the Court balances the law’s burdens on interstate commerce against its benefits, invalidating a law when the burden imposed on interstate commerce is “excessive in relation to the [law’s] putative local benefits.”
There are two approaches to this balancing test. In balancing the law’s burdens on interstate commerce against its benefits, some circuit courts require a heightened standard in which the government must prove that the asserted local benefits are both genuine and credibly advanced by the law; other circuits accept any rational assertion of benefit by the state. This Note argues that the heightened approach to balancing is appropriate with respect to DtC licensing fees because of concerns that states will prop up seemingly legitimate interests that are not truly advanced by the licensing fees. Moreover, a rational basis standard ignores the unique climate conditions of particular states that affect the quality of wine production. This Note will ultimately conclude that DtC licensing fees are unconstitutionally burdensome on interstate commerce
Supreme Court Deals Biden Two Blows in One Week
No full textNeal Devins, a professor at William & Mary Law School, discusses the Supreme Court lifting the Biden administration\u27s eviction moratorium, ending protection for millions of people who have fallen behind on their rent during the pandemic.
Leon Fresco, a partner at Holland & Knight, discusses the Supreme Court ordering the Biden administration to reinstate the Trump administration\u27s Remain in Mexico policy, which forced migrants to wait in Mexico while their asylum claims were processed.
June Grasso hosts
Coronavirus Cures and the Courts
Get PDFThe coronavirus pandemic has drastically affected nearly every aspect of American life. Unfortunately, it has also created an opportunity for those willing to exploit vulnerable citizens by selling fake “cures.” This Article analyzes a lawsuit against televangelist Jim Bakker for doing just that. This Article also calls for increased protection for individuals when a global health pandemic and national emergency have been declared. This Article advocates a novel proposal—the enacting of a federal statute making it a felony for an individual to knowingly sell a fraudulent cure for any disease that has been designated a pandemic by the World Health Organization and in which the President of the United States has designated a national emergency.
The following federal criminal statute is proposed:
Whoever, having devised or intending to devise any scheme or artifice to defraud, for the express knowing purpose of obtaining money or property by means of false or fraudulent pretenses, representations, or promises of a cure for a disease designated by the World Health Organization as a global pandemic and designated by the President of the United States as a national emergency pursuant to the provisions of the National Emergencies Act, shall be fined not more than $2,000,000 or imprisoned not more than 50 years, or both.
This potent statute will help deter individuals such as Jim Bakker from fraudulently selling “cures” during a pandemic crisis. Additionally, it will serve as a preventative measure in limiting the spread of a deadly pandemic disease such as coronavirus