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Tax Abuse According to Whom?
Full text linkBefore 1996, the Internal Revenue Code presumed that tax regulations applied to transactions executed before their enactment, giving the Treasury Department broad authority to regulate retroactively. In 1996, however, Congress reversed this presumption, requiring regulations relating to Code sections enacted after 1996 to operate prospectively. Congress also provided an important exception in section 7805(b)(3), allowing tax regulations to apply retroactively “to prevent abuse.” Congress did not, however, explicitly define abuse; nor did it designate to any specific actor the power to do so. This Article provides a comprehensive look at the level of deference reviewing courts owe a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception. Generally, an agency’s statutory interpretation is entitled to receive either the strong standard of deference articulated in Chevron v. Natural Resource Defense Council, or the lesser degree of deference articulated in Skidmore v. Swift & Co. To date, the courts reviewing retroactive tax regulations enacted to prevent abuse have declined to apply Chevron deference, relying on administrative law principles recently rejected by the Supreme Court in Mayo Foundation v. United States. This Article, therefore, provides a needed guide to future courts by applying the post-Mayo deference framework to Treasury Regulations that interpret section 7805(b)(3). This Article concludes that, under this framework, a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception should receive strong Chevron deference so long as it is promulgated under proper administrative procedures.This analysis provides a significant contribution. Through the issuance of retroactive regulations, Treasury promotes the efficient enforcement of the tax laws and deters egregious abuse. But case law suggests that the courts and Treasury Department have very different interpretations of the Code’s abuse exception. Therefore, the ability of Treasury to respond to and prevent aggressive tax behavior through retroactive tax regulation may turn largely on which actor possesses primary authority to define tax abuse
America’s Failure to Rescue Parents: A Narrative of Inequitable Tax “Reform”
No full textOther developed nations provide a slew of direct benefits to parents, such as paid parental leave and affordable childcare. America instead takes a circuitous route, heavily relying on the Internal Revenue Code (the “Code”) to provide tax breaks to certain parents. In addition to being indirect and comparatively stingy, these “parental tax benefits” are not awarded equitably. Instead, they favor nonpoor, one-breadwinner families, ignore the plight of nonpoor, working parents incurring substantial childcare and other work-related costs, exhibit an outright hostility toward poor parents, and raise a host of other distributional concerns. This preferentialism is sticky— when Congress alters parental tax benefits, it rarely deviates from these patterns.
That is, until the COVID-19 pandemic. Signed into law on March 11, 2021, the American Rescue Plan Act (the “ARPA”) provided much-needed relief to parents attempting to maintain jobs and care for children during this global health crisis. As is America’s tendency, the ARPA leaned extensively on the Code to do so. But it abandoned its consistent preferentialism for nonpoor, one breadwinner parents, expanding the various tax benefits available to nonpoor, working parents and poor parents in historically significant ways.
This was short-lived. The ARPA’s expanded parental tax benefits were only available in 2021 and have now expired, leaving parents back where they started. And while it initially appeared that the “Build Back Better Act” would resurrect many of these benefits, Congress ultimately let them all lapse. Because the ARPA was born in a crisis, there is a danger that this fleeting legislation will be viewed as having little historical relevance beyond the emergency context in which it was enacted. I resist this narrative and create a counter one. By situating the ARPA within a broader historical context, an alternative narrative is developed—one where the ARPA’s expansion of parental tax benefits enacted long overdue adjustments that began to correct the distributionally problematic way in which America has historically favored some families over others.
Preserving this historical narrative is imperative. It underscores the alarming failure of Congress to extend any of the ARPA’s parental tax benefits. And even more importantly, the narrative of inequitable tax reform developed in this project—supported by history—should ground imminent conversations that will shape the future of how parents in America are taxed. The parental tax benefits effectuated in the Tax Cuts and Jobs Act amplified Congress’s inequitable treatment of families and favoritism towards nonpoor, one-breadwinner families, These benefits, however, will expire at the end of 2025, providing a date certain on which Congress must revisit its method of taxing parents. During these imminent conversations, a mastery of the historical context preserved in this Article should arm those who advocate for a more inclusive method of supporting parents attempting to raise children in the United States
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Taxing Parents: Welfarist Theories
No full textThe Internal Revenue Code (the Code ) taxes parents inequitably. Couples with a sole earner are undertaxed compared to couples with dual earners and to single parents. Legal tax scholarship (including my own) has identified the many inequities that result from this sole-earner bias and have called for its elimination. But while these arguments have been sufficient for some, they do remain susceptible to the criticism that they are theoretically incomplete.
That critique might proceed as follows. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, it might be argued, the Code plays favorites all the time. To evaluate whether tax preferences are warranted, scholars have traditionally turned to theories of distributive justice. These theories offer competing visions about the way resources should be allocated. Rather than advocating blanket equality, these theories identify higher order principles that justify preferentialism. But, critics might argue, scholars who have asked Congress to eliminate the Code\u27s preference for sole earners have often failed to connect their arguments with this distributive literature.
This Article, the first in a series, begins to respond to this potential criticism by connecting traditional theories of distributive justice with the debate surrounding the Code\u27s inequitable taxation of parents. To do so, I focus on welfarist theories — a body of distributive theories that seek to maximize social welfare — because of the dominant influence they have exerted over tax debates. It shows why welfarism, and in particular utilitarianism, may sometimes support the Code\u27s sole-earner bias despite the inequities it creates. And it shows how, more generally, it may favor parents who have relatively expansive opportunity sets and are, therefore, better positioned to use their income to achieve well-being than other parents with fewer choices.
Some will find these prescriptions counterintuitive and even troubling. For them, the analysis may reveal the limitations of relying too heavily on welfarism to analyze the taxation of parents. Recognizing this, I conclude by identifying other non-welfarist theories that have received less attention in the legal tax scholarship and discussing how they could expand conversations about how parents should be taxed relative to one another
Too Close to Home: Limiting the Organizations Subsidized by the Charitable Deduction to Those in Economic Need
Full text linkThe charitable deduction allows taxpayers to deduct amounts donated to organizations pursuing statutorily designated purposes from their otherwise taxable income. By lowering the after-tax cost of giving and encouraging taxpayers to donate more than they otherwise would, the charitable deduction subsidizes a broad variety of organizations. Some of these organizations provide widespread societal benefits, while others provide narrower benefits that remain closer to the taxpayer-donor’s home. To evaluate these current laws, this Article focuses on efficiency criteria, which limit subsidized organizations to those with donor support that does not cover the costs needed to optimally provide goods and services. Existing scholarship has identified the conditions that cause these underfunding issues but has not sought to apply these concepts to determine whether the organizations subsidized through the charitable deduction are actually in economic need. This Article seeks to fill this gap. While one cannot precisely determine whether and to what extent any given organization or type of organization is underfunded, the general assessment of this Article provides a starting point for evaluating the scope of the deduction. This Article suggests that some organizations currently subsidized through the charitable deduction may be able to garner sufficient donations on their own and that the tax law may provide subsidies that are economically unnecessary
Tax Abuse According to Whom?
Full text linkBefore 1996, the Internal Revenue Code presumed that tax regulations applied to transactions executed before their enactment, giving the Treasury Department broad authority to regulate retroactively. In 1996, however, Congress reversed this presumption, requiring regulations relating to Code sections enacted after 1996 to operate prospectively. Congress also provided an important exception in section 7805(b)(3), allowing tax regulations to apply retroactively “to prevent abuse.” Congress did not, however, explicitly define abuse; nor did it designate to any specific actor the power to do so. This Article provides a comprehensive look at the level of deference reviewing courts owe a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception. Generally, an agency’s statutory interpretation is entitled to receive either the strong standard of deference articulated in Chevron v. Natural Resource Defense Council, or the lesser degree of deference articulated in Skidmore v. Swift & Co. To date, the courts reviewing retroactive tax regulations enacted to prevent abuse have declined to apply Chevron deference, relying on administrative law principles recently rejected by the Supreme Court in Mayo Foundation v. United States. This Article, therefore, provides a needed guide to future courts by applying the post-Mayo deference framework to Treasury Regulations that interpret section 7805(b)(3). This Article concludes that, under this framework, a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception should receive strong Chevron deference so long as it is promulgated under proper administrative procedures. This analysis provides a significant contribution. Through the issuance of retroactive regulations, Treasury promotes the efficient enforcement of the tax laws and deters egregious abuse. But case law suggests that the courts and Treasury Department have very different interpretations of the Code’s abuse exception. Therefore, the ability of Treasury to respond to and prevent aggressive tax behavior through retroactive tax regulation may turn largely on which actor possesses primary authority to define tax abuse
Tax Abuse According to Whom?
No full textBefore 1996, the Internal Revenue Code presumed that tax regulations applied to transactions executed before their enactment, giving the Treasury Department broad authority to regulate retroactively. In 1996, however, Congress reversed this presumption, requiring regulations relating to Code sections enacted after 1996 to operate prospectively. Congress also provided an important exception in section 7805(b)(3), allowing tax regulations to apply retroactively “to prevent abuse.” Congress did not, however, explicitly define abuse; nor did it designate to any specific actor the power to do so. This Article provides a comprehensive look at the level of deference reviewing courts owe a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception. Generally, an agency’s statutory interpretation is entitled to receive either the strong standard of deference articulated in Chevron v. Natural Resource Defense Council, or the lesser degree of deference articulated in Skidmore v. Swift & Co. To date, the courts reviewing retroactive tax regulations enacted to prevent abuse have declined to apply Chevron deference, relying on administrative law principles recently rejected by the Supreme Court in Mayo Foundation v. United States. This Article, therefore, provides a needed guide to future courts by applying the post-Mayo deference framework to Treasury Regulations that interpret section 7805(b)(3). This Article concludes that, under this framework, a Treasury Regulation’s interpretation of section 7805(b)(3)’s abuse exception should receive strong Chevron deference so long as it is promulgated under proper administrative procedures. This analysis provides a significant contribution. Through the issuance of retroactive regulations, Treasury promotes the efficient enforcement of the tax laws and deters egregious abuse. But case law suggests that the courts and Treasury Department have very different interpretations of the Code’s abuse exception. Therefore, the ability of Treasury to respond to and prevent aggressive tax behavior through retroactive tax regulation may turn largely on which actor possesses primary authority to define tax abuse
America’s Failure to Rescue Parents: A Narrative of Inequitable Tax “Reform”
Full text linkOther developed nations provide a slew of direct benefits to parents, such as paid parental leave and affordable childcare. America instead takes a circuitous route, heavily relying on the Internal Revenue Code (the “Code”) to provide tax breaks to certain parents. In addition to being indirect and comparatively stingy, these “parental tax benefits” are not awarded equitably. Instead, they favor nonpoor, one-breadwinner families, ignore the plight of nonpoor, working parents incurring substantial childcare and other work-related costs, exhibit an outright hostility toward poor parents, and raise a host of other distributional concerns. This preferentialism is sticky— when Congress alters parental tax benefits, it rarely deviates from these patterns.
That is, until the COVID-19 pandemic. Signed into law on March 11, 2021, the American Rescue Plan Act (the “ARPA”) provided much-needed relief to parents attempting to maintain jobs and care for children during this global health crisis. As is America’s tendency, the ARPA leaned extensively on the Code to do so. But it abandoned its consistent preferentialism for nonpoor, one breadwinner parents, expanding the various tax benefits available to nonpoor, working parents and poor parents in historically significant ways.
This was short-lived. The ARPA’s expanded parental tax benefits were only available in 2021 and have now expired, leaving parents back where they started. And while it initially appeared that the “Build Back Better Act” would resurrect many of these benefits, Congress ultimately let them all lapse. Because the ARPA was born in a crisis, there is a danger that this fleeting legislation will be viewed as having little historical relevance beyond the emergency context in which it was enacted. I resist this narrative and create a counter one. By situating the ARPA within a broader historical context, an alternative narrative is developed—one where the ARPA’s expansion of parental tax benefits enacted long overdue adjustments that began to correct the distributionally problematic way in which America has historically favored some families over others.
Preserving this historical narrative is imperative. It underscores the alarming failure of Congress to extend any of the ARPA’s parental tax benefits. And even more importantly, the narrative of inequitable tax reform developed in this project—supported by history—should ground imminent conversations that will shape the future of how parents in America are taxed. The parental tax benefits effectuated in the Tax Cuts and Jobs Act amplified Congress’s inequitable treatment of families and favoritism towards nonpoor, one-breadwinner families, These benefits, however, will expire at the end of 2025, providing a date certain on which Congress must revisit its method of taxing parents. During these imminent conversations, a mastery of the historical context preserved in this Article should arm those who advocate for a more inclusive method of supporting parents attempting to raise children in the United States
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
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