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Thoughts Regarding the Application of the Step Transaction Doctrine to the Section 351 Control Requirement and Complex Media, Inc. v. Commissioner
Get PDFOver thirty years ago, Professor Ronald H. Jensen authored an article in the Virginia Tax Review, titled “Of Form and Substance: Tax Free Incorporations and Other Transactions Under Section 351.” Professor Jensen asserted that it was inappropriate to utilize the step transaction doctrine to determine whether the control requirement was met in a purported section 351 transaction, involving a disposition of some, or all, of the transferor’s shares even if effected by a binding contract made prior to the contribution.
Professor Jensen concluded that the courts and the Internal Revenue Service (Service) have produced a hodgepodge of intellectually inconsistent decisions and rulings making predictability problematic. There is no doubt of the many inconsistencies rendered by the Service and the courts in addressing the use of the step transaction to determine whether the control test under section 351 has been satisfied when there had been dispositions connected with the initial contribution. Nevertheless, there are sound policy reasons for the application of this judicial canon in certain circumstances and that Professor Jensen’s prescription for remedying the problem, i.e., by the complete elimination of the doctrine’s utilization in this context, is unwarranted.
This Article also considers the recent Tax Court decision, Complex Media, Inc. v. Commissioner, which addresses a different facet of section 351 control. The case involved, inter alia, the taxpayer’s successful attempt to invoke the step transaction doctrine to treat as boot, payments made to one of the partners of the transferor. Another aspect of the arrangement, however, is particularly troubling and the reason why discussion of the case is part of this Article examining section 351 control. This concerns the taxpayer’s position regarding how the requisite ownership was achieved. The court, at the behest of both parties, reluctantly agreed to include an act, i.e., a merger, in allowing the section to apply when the taxpayer’s form arguably did not comport with the statutory requirements. The Service’s concurrence to section 351 treatment was apparently motivated by its desire to minimize taxpayer’s amortization deductions rather than seeking to achieve a sound policy outcome
Our New Normal? How Covid-19 Accelerated Pre-Pandemic Trends in State Court Litigation
No full textThis Article briefly summarizes thirty years of research conducted by the National Center for State Courts (NCSC) on civil litigation in state courts, highlighting the most important trends for contemporary civil justice stakeholders. It then describes the impact of the COVID-19 pandemic on civil caseloads and its implications for civil case processing. It concludes with a description of the civil justice reforms endorsed by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) to address pandemic-related backlogs and to ensure a more effective civil justice system.
This abstract has been taken from the author\u27s introduction
DT Global in Washington, D.C.
No full textAllison Ripple [1L] will work with DT Global, an international development organization that strives to improve economic growth, the environment, infrastructure, governance, human development, and stabilization, using technical expertise, global networks, and data-driven analysis to deliver sustainable solutions
American Bar Association Rule of Law Initiative in Washington, D.C.
No full textKendall Pietrzak [1L] will work with the American Bar Association Rule of Law Initiative, helping to promote global justice, economic opportunity, and human rights through the Rule of Law
The Right to Train: A Pillar of the Second Amendment
Get PDFSince the Supreme Court confirmed that the Second Amendment protects “the individual right to possess and carry weapons” in District of Columbia v. Heller, lower courts have been grappling with whether there is also a right to train with those weapons. Courts have considered whether training is a protected activity, whether it is a “core” right, and whether its protection is limited to gaining the minimum competency needed for self-defense.
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No court yet has explored the legal history of the right to train, nor has any article. This Article presents the first in-depth historical exploration of the right. It reveals that America’s Founders viewed the right to train as a pillar of the Second Amendment: it supports every aspect of the right, including self-defense, community defense, militia rights, and the prevention of tyranny. Moreover, the activity of training itself was cherished by the Founders. This history reveals that training is central to the right and deserving of robust Second Amendment protection.
This abstract has been adapted from the author\u27s introduction
Decentralizing Sustainably -- How Blockchain Can Benefit Environmental Goals
Get PDF[...] As presented in this Note, with a lack of clear guidance, disparate legislation from U.S. states continues to form a patchwork approach of policy to the topic of blockchain, with notably little attention paid towards environmentally sustainable practices. While this transpires across the states, sentiments from members of the federal legislative and, most recently, the executive branches of government express priorities in two areas when developing policy on the matter.
As this Note will outline, the concerns are generally over the sustainability of cryptocurrency mining practices and the potential for blockchain innovation to benefit environmental sustainability goals. However, while the conversation transpires, there is no meaningful federal legislation addressing these concerns. The implementation of decentralized ledger technology in our country can be done with little to no carbon footprint and could serve to enhance environmentally sustainable practices across numerous industries. Decentralized ledger technology, or more specifically blockchain technology, at present is in its infancy. However, this infant has already facilitated a trillion-dollar cryptocurrency market. While many consider blockchain to be an end-all be-all solution, this may not be the case. Blockchain technology is not infinite in its uses, but it is infinitely powerful in its potential benefits. This Note begins with a general overview of blockchain technology and some of most important features of a blockchain, followed by a discussion of the international and domestic conversations and regulatory attitude towards blockchain technology and cryptocurrencies, and it concludes with discussions on the two main points at issue for government attention in passing meaningful legislation to further sustainability goals.
This abstract has been taken from the author\u27s introduction
Indoctrination by Elimination: Why Banning Critical Race Theory in Public Schools is Unconstitutional
Get PDFThis Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest that CRT must be added to all public school curricula, given that CRT was not taught in K–12 public school students prior to this ban. Instead, this Note argues that an outright ban violates students’ constitutional rights under the First Amendment.
While it is true that schools are special environments within the context of the First Amendment where students have more limited First Amendment rights, the Supreme Court has made clear that students’ fundamental First Amendment rights remain, and that while courts will not generally intervene in schools’ issues, they will intervene when fundamental constitutional rights are infringed. This Note argues that CRT bans, like those of Texas and other states, are an example of such an infringement.
First, this Note will discuss what Critical Race Theory is, and why Texas and other states have tried to ban it. Second, this Note will discuss what First Amendment rights students have, and argue that this ban violates those rights. This Note specifically examines a student’s right to speak and a student’s right to receive information under the First Amendment. Finally, this Note will argue that rather than protecting the educational system and its students, as the proponents of this law argue, this ban actually counteracts the values and mission of the country’s public education system and constricts the ability of students to grow into members of society capable of participating in an increasingly diverse and complex world.
This abstract has been taken from the author\u27s introduction
Hitting the Brakes on Child Trafficking: An Analysis of Anti-Trafficking Legislation in Viet Nam
Get PDFViet Nam is considered a country of origin for child sex trafficking, especially to Thailand, Cambodia, and China, all significant destinations for child sex tourism, a form of prostitution. Despite existing laws and policies in Viet Nam and elsewhere in Southeast Asia, child trafficking operations in the region have flourished. Viet Nam has been characterized as a country whose “[g]overnment . . . does not fully meet the [Trafficking Victims Protection Act’s] minimum standards for the elimination of trafficking but is making significant efforts to do so.” Viet Nam has demonstrated its commitment to preventing human trafficking, both within and without its borders. It has done so by amending its laws, ratifying international treaties, and cooperating with regional anti-trafficking initiatives. However, the government of Viet Nam should undertake additional legislative reforms to fully comply with all applicable international human rights standards and anti-trafficking initiatives.
This Article seeks to examine Viet Nam’s trafficking problem both within the context of Viet Nam’s child sex trafficking patterns and Viet Nam’s cultural, economic, and political environment. The Introduction reviews the current problem and describes child trafficking in Viet Nam. The first part examines the Vietnamese government’s effort to prevent, protect, and prosecute against child traffickers. It will concentrate on the implementation of national laws as mandated by international law and the likelihood of success of criminal prosecution in Viet Nam. The second part will focus on the impact of international efforts to rescue, rehabilitate, and reintegrate exploited children. The third part examines the impact of U.S. influence on the evolution of sex trafficking of children within Viet Nam. The last part discusses recommendations to combat child trafficking in Viet Nam.
This abstract has been adapted from the author\u27s introduction
A Title VII Dead End? Machine Learning and Employee Monitoring
Get PDFThis Note will argue that Title VII, as courts currently apply the law, does not adequately protect employees from algorithmic discrimination when companies use machine learning to monitor their employees\u27 computers. Part I will provide an introduction to how employee monitoring tools work, how employers are using machine learning in their monitoring programs, and how these programs can discriminate. Because scholars have already done significant work in this area, this Note will not try to replicate this research but will provide an overview of how this discrimination can occur. Parts II and III will then analyze how an employee might prove a Title VII claim. Part II will analyze an employee\u27s claim under the disparate treatment theory of discrimination and ultimately conclude that an employee is unlikely to succeed under this theory of discrimination. Part III then analyzes a potential claim under the disparate impact theory of discrimination, analyzing each of the three prongs of the disparate impact test. This Note ultimately concludes that, although disparate impact appears better suited to address algorithmic discrimination in employee monitoring, an employee is still unlikely to succeed under this theory. Part IV discusses potential ways to address the issue of algorithmic discrimination in employee monitoring and ultimately concludes that a negligent use of technology standard would best suit the interests of both employers and employees. This abstract has been adapted from the author\u27s introduction