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Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation
Get PDFEach profession entails a risk for a different kind of casual conversation its members must endure. Medical doctors probably endure casual conversations about pains and rashes, second guesses of primary care physicians, and disorganized thoughts about health care reform, prescription drugs, vitamin C, and chelation. Pastors, priests, and rabbis probably endure unbridled enthusiasm for ecumenical dialogue and experience. Lawyers listen to horror stories of divorce and custody battles, disorganized thoughts on tort reform, and, of course, lawyer jokes, most of which are not new, few of which are funny, and none of which are clever. Specialists within each profession suffer with specific conversations. The psychiatrist and the dermatologist risk different conversations, as do the tax lawyer and the criminal defense lawyer. The conversational risks of tax lawyers are fairly predictable. First are those conversations premised on confusing us with accountants, usually beginning with an inquiry as to our annual April 15th-related workload. Second are political conversations, usually about tax rates—especially those on capital gains, corporations, and estates. Some while back, the conversation was likely to begin with the wonders of the so-called flat tax, and no doubt the flat tax proposals will circle back again in our casual conversations. (Recently a medical doctor engaged me on the wonders of the flat tax, and given his conversation ensued during a medical procedure, I found myself more enamored with the proposal than ever before.) Perhaps the most common political tax topic at the moment is the income tax burden borne at the top and the income tax ease enjoyed on the bottom. The third common casual conversation topic for tax lawyers has to do with tax gimmicks and, especially, rumors of tax gimmicks. With this kind of conversation, tax lawyers are fairly skilled in conversational evasiveness, worrying about unintentionally forming an attorney-client relationship. Our fears related to this kind of conversant are not merely avoiding ethical issues or providing undeserved free legal advice but more so avoiding inviting him or her into a professional relationship. Clients interested in the latest tax gimmicks must be avoided, and those willing to chat-up strangers about tax advice are especially to be avoided
Recent Developments in Federal Income Taxation: The Year 2008
Get PDFThis recent developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during 2008 — and sometimes a little farther back in time if we find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted. Amendments to theInternal Revenue Code generally are not discussed except to the extent that (1) they are of major significance, (2) they have led to administrative rulings and regulations, (3) they have affected previously issued rulings and regulations otherwise covered by the outline, or (4) they provide Dan and Marty the opportunity to mock our elected representatives. The outline focuses primarily on topics of broad general interest (to the three of us, at least) – income tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties. It deals summarily with qualified pension and profit sharing plans, and generally does not deal with international taxation or specialized industries, such as banking, insurance, and financial services. Please read this outline at your own risk; we take no responsibility for any misinformation in it, whether occasioned by our advancing ages or our increasing indifference as to whether we get any particular item right. Any mistakes in this outline are Marty’s responsibility; any political bias or offensive language is Ira’s; and any useful information is Dan’s
Ghosts of 1932: The Lost History of Estate and Gift Taxation
Get PDFIn 1932, the United States confronted a bleak economic landscape. Amid the financial carnage caused by the 1929 stock market crash and the ensuing Great Depression, economic activity had ground to a halt, tax revenues had plunged, and the nation’s debt had soared. The declining government revenues and soaring debt threatened both the viability of American industry and the stability of the nation’s credit rating. Congress took bold action that year, enacting a massive tax bill (“the Revenue Act of 1932”) designed to balance the federal budget without further stifling economic growth.As has been true through nearly a century of tax legislation, Congress included estate and gift taxes as a component of the Revenue Act of 1932. The architects of the 1932 estate and gift tax provisions made a number of crucial legislative choices that fateful year, implicating issues of tax policy that remain as relevant today as they were some eighty years ago. Yet, histories of American taxation typically devote frustratingly little analysis to the specific estate and gift tax provisions included in the Revenue Act of 1932. As a result, despite their continued relevance, the details of key decisions, and the motivations of those who made them, effectively have been lost to history.In this paper, I seek to reclaim this lost history of estate and gift taxation. While the ensuing analysis certainly will enable us to more fully appreciate the events of 1932 and evaluate the actions Congress took in that fateful year, my inquiry is not of mere historical interest. Rather, the choices made in 1932 have helped shape the fundamental structure of U.S. estate and gift taxation for nearly eight decades, including our modern estate and gift tax code. Accordingly, understanding the events of 1932 can help us to understand why our estate and gift taxes operate the way they do as well as help inform future debate about the optimal structure of our wealth transfer tax system
The Virtual Tax Library: A Comparison of Five Electronic Tax Research Platforms
Get PDFImproved LexisNexis and Westlaw tax research platforms and new electronic tax research platforms offered by BNA (BNA Tax Management Library), CCH (CCH Tax Research NetWork), and RIA (RIA Checkpoint) constitute a virtual tax library that offers tax researchers much of the content and functionality of a physical tax library, as well as some useful functionality features (e.g., direct linking of primary and secondary sources) a physical tax library cannot provide. The new virtual tax library offers tax researchers numerous benefits, including the convenience of a portable library, more reliable and current research results, and increased research efficiency. Many tax researchers have not adapted their tax research techniques to effectively utilize the virtual tax library, however, because they are unfamiliar with the new and improved electronic tax research platforms.To reduce tax researchers’ costs of evaluating and comparing the five electronic platforms, this Article provides detailed comparisons of the content and functionality features offered by the platforms. This Article also explains how to access various types of primary and secondary tax sources on the platforms and provides detailed “search pathways” that will enable tax researchers to navigate around the electronic platforms. Part I of this Article provides background information regarding the development of the new electronic tax research platforms and explains our project and methodology. Part II compares the primary and secondary source content offered on the five electronic platforms and compares various types of free tax information that are available on the internet. Part III compares the various functionality features offered on the five electronic platforms. Part IV illustrates the differences in search results obtained by using the various electronic platforms to research a topical tax research question. Part V discusses the factors that are relevant when designing an electronic tax research system and makes recommendations about combining the electronic tax research platforms to create a workable virtual tax library.A chart in Appendix A provides a side-by-side comparison of the primary source content available on the five electronic tax research platforms. The chart includes search pathways and date restrictions for each type of content. A chart in Appendix B provides a side-by-side comparison of the functionality features offered by each platform. The chart includes quick reference guides for initiating various types of searches, as well as user support information for each platform
Horizontal and Vertical Equity in Taxation as Constitutional Principles: Germany and the United States Contrasted
Get PDFGermany's Basic Law assigns primary jurisdiction over constitutional issues to Germany's Constitutional Court and requires other courts to suspend their proceedings and refer constitutional issues that are critical to resolution of any pending case to the Constitutional Court. In the United States, the Supreme Court has broad appellate and, in some cases, original jurisdiction; and its authority to review legislative action for conflict [*262] with the Constitution became clear early in the Court's history. Unlike Germany, however, lower courts also have jurisdiction to decide constitutional issues, subject of course to eventual Supreme Court review.While the U.S. Supreme Court has resolved many tax controversies, with taxpayers raising constitutional questions in a number of cases addressing questions of federal tax law, only infrequently has the Court found a federal taxing statute to violate a constitutionally protected right or privilege. Rarely has the Supreme Court looked to the Constitution and decided that a federal tax law violated the Constitution. Never has the Supreme Court held a federal tax law to conflict with the Bill of Rights. Many more decisions involve challenges to state tax statutes as in conflict with the U.S. Constitution. Often those state law cases combine claims under several provisions of the Constitution, including the Commerce Clause, Due Process, and Equal Protection. In reviewing state tax [*263] statutes for compliance with constitutional standards, the Court consistently has applied its "rational basis test," its least intrusive standard of review. Under that test, a statute is valid so long as the legislature has a rational basis for its enactment. The decisions predominantly uphold the state taxing statute. Occasionally, the Court limits states' taxing power or their tax collection authority over non- residents
Recent Developments in Federal Income Taxation: The Year 2004
Get PDFThis current developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the year 2004. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail; only the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed unless they are significant or have led to administrative rulings and regulations that are covered by the outline. The outline focuses primarily on topics of broad general interest: income tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties. It deals summarily with qualified pension and profit sharing plans, but generally does not deal with international taxation or specialized industries, such as banking, insurance, and financial services
Recent Developments in Federal Income Taxation: The Year 2002
Get PDFThis current developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the year 2002. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail; only the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed except to the extent that they have either led to administrative rulings and regulations or have affected previously issued rulings and regulations otherwise covered by the outline. The outline focuses primarily on topics of broad general interest – ¾ income tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties. It deals summarily with qualified pension and profit sharing plans, but generally does not deal with international taxation or specialized industries, such as banking, insurance, and financial services
The Future Taxation of Private Business Firms
Get PDF© 1998 by George K. Yin. This article represents a continuation of work I have done as reporter to the American Law Institute's Federal Income Tax Project on the Taxation of Private Business Enterprises. Portions of this article have been drawn from drafts and discussions undertaken in connection with that project as well as from a prior article, George K. Yim, The Taxation of Private Business Enterprises: Some Policy Questions Stimulated by the "Check-the-Box" Regulations, 51 SMU Law Rev. 125 (1997).This article was prepared for presentation at a February 1998 symposium and research for it was completed in May 1998. A final ALI Reporters' Study is scheduled to be published in June 1999.Recent federal and state law developments liberalizing the permissible forms of business organizations and the classification of such organizations for tax purposes have underscored the need to reexamine the current system of taxing the income of private businesses. This article, which undertakes that reexamination, makes two principal claims. First, current law ought to be replaced by a system whereby all private business firms, no matter what their form of organization and organizational characteristics, are taxed as conduits for income tax purposes. Second, because conduit taxation is so complicated, the system should be implemented through a "two-track" approach in which a subset of private business firms would, at their election, be subject to a simplified set of tax rules. In general, the simplified version would be available to firms which have only individuals as owners and which have surrendered some flexibility in their economic dealings. Part II of this article briefly explains why current law merits reexamination and Parts III and IV correspond to the two main claims being made. A final part contains a brief summary and conclusion
Blum and Kalven at 50: Progressive Taxation, “Globalization,” and the New Millennium
Get PDFAlmost 50 years ago, Walter Blum and Harry Kalven described the case for progressive taxation as "stubborn but uneasy." This article considers the extent to which that conclusion remains valid five decades later. I argue that the case for progressivity is today even more uneasy than in Blum and Kalven's time, as a result of three principal developments: a more conservative political environment, which is generally hostile to redistributive measures; the femininization and minoritization of poverty, which make it easier to rationalize inequality and tend to divide the constituencies in favor of progressive measures; and the globalization of economic life, which suggests that a progressive rate structure may cause the country to lose business to other nations. These developments challenge both the philosophical underpinnings of progressive taxation, which is based on liberal assumptions that are now severely contested, and its political support, which flowed from a Cold War consensus that now no longer exists. Globalization is particularly significant, for it suggests a practical as well as a theoretical limit on progressive taxation, and raises the specter that progressivity may be swimming against the historical tide.These same developments also present an opportunity. If supporters of progressivity can confront the changes described above and if they can adjust their arguments to the realities of the Twenty-First Century, then the case for progressivity may yet prove stronger than in Blum and Kalven's era. However, to accomplish this progressivity supporters must change both their rhetoric and research agenda.On a rhetorical level, scholars must make a more candid and forceful case for progressivity as a means of redistribution, emphasizing the unfairness of today's "winner-take-all" society and the role of irrelevant factors such as race, gender, and immigrant status in pretax income distributions. These arguments suggest that, far from being inconsistent with a dynamic, merit-based society, progressive taxation may be necessary in order to preserve it. Progressive taxation should be especially attractive to those who object to affirmative action and similar race-conscious programs but support redistribution based on economic or financial status
Treaty-Based Nondiscrimination: Now You See It Now You Don't
No full textA broad nondiscrimination provision appears in every income tax treaty that the United States has entered into in the last quarter century. The nondiscrimination article of these treaties purports to prohibit discriminatory taxes levied against foreign nationals or their businesses. However, some distinctions have always been permitted, based on the fact that domestic and foreign taxpayers are not similarly situated because different taxing jurisdictions are concerned. The problem is that it is difficult to articulate a consistent and rational standard to apply to determine when proscribed discrimination is present.The language used in a typical U.S. nondiscrimination provision, such as Article 24 of the 1981 U.S. Model Income Tax Treaty (the "1981 U.S. Model"), can be traced to the 1963 draft model convention published by the Organization for Economic Cooperation and Development Committee on Fiscal Affairs, Draft Double Taxation Convention on Income and on Capital (the "1963 OECD Model"). The 1977 draft of the Organization for Economic Cooperation and Development Model Double Taxation Convention on Income and on Capital (the "1977 OECD Model") includes a similar provision as its Article 24. Both the 1963 OECD Model and the 1977 OECD Model have been instrumental in guiding development of the language of bilateral income tax treaties. Copies of Article 24 of the 1981 U.S. Model and of Article 24 of the 1977 OECD Model are attached as Appendix A and Appendix B