TaxProf Blog

Following up on this morning's post, University Of Oregon Report: Tax Prof Nancy Shurtz Violated Anti-Discrimination Policy By Wearing Blackface To Halloween Party; Any Disciplinary Action Is Confidential:  Josh Blackman (South Texas), The Freedom of Speech at the University of Oregon:

The University of Oregon’s position is similar to the argument that the University of Oklahoma fraternity brothers, who sang racist songs on a bus, could be expelled because it created a “hostile educational environment.” If you haven’t heard this phrase before, get used to it — it is a nebulous standard which will used to punish all manner of constitutionally-protected speech. But this position is a smokescreen. Eugene Volokh explains in this post why there is no “hostile education environment” exception to the First Amendment — especially for speech at private functions. ...

This is a very, very dangerous standard. An off-campus event that a small number of students attended now gives rise to on-campus discipline because students (who did not even witness the event) feel compelled to “avoid the resulting negative environment.” If this is the standard, then anything and everything can create a “hostile educational environment.” Consider several examples I raise in my my forthcoming piece in the Georgetown Journal of Leg HTML al Ethics on Model Rule 8.4(g). What if a Professor made any of these remarks at a bar association function that was also attended by students?

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December 22, 2016 in Legal Education | Permalink | Comments (0)

American Lawyer, Lawyers for the Wealthy Await Trump's Estate Tax Plan:

Donald Trump vowed to eliminate the estate tax during his presidential campaign, calling the 100-year-old tax "a disaster" and "a horrible weapon that has destroyed many families." If there are such families, the number is likely small, since very few Americans pay an estate tax. Last year only 4,918 estates owed money under the law, according to the Internal Revenue Service. That's because anyone with an estate worth less than $5.34 million, or $10.68 million for a couple, is exempt.

With Trump soon to take office, trust and estate lawyers who help rich clients minimize or avoid estate taxes don't appear panicked that a revenue stream for their practices is about to dry up. In fact, most anticipate being busier than ever.

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December 22, 2016 in Tax | Permalink | Comments (0)

Continuing my coverage of the July 2016 California bar exam (links below):  Robert Anderson (Pepperdine), California Law School Bar Passage Rates Recalculated for the New York Bar:

I use the abysmal bar results from the July 2016 bar exam to illustrate the difference between California and another large state, New York. New York has a required passing score that is about average across the 50 states, whereas California has an unusually high required passing score. The table below shows just how different the results for California law schools would have been if California used the same passing score as New York. ...

This chart compares Rob's results for the California law schools' projected New York bar pass rates with the New York law schools' actual New York bar pass rates:

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December 22, 2016 in Legal Education | Permalink | Comments (4)

Bloomberg, Google Lowered 2015 Taxes by $3.6 Billion Using ‘Dutch Sandwich’:

Alphabet’s Google saved $3.6 billion in worldwide taxes in 2015 by moving 14.9 billion euros ($15.5 billion) to a Bermuda shell company, new regulatory filings in the Netherlands reveal.

The amount the company shifted through its Dutch subsidiary, Google Netherlands Holdings BV, and then on to a Bermuda mailbox was 40 percent greater than in 2014, according to filings the company made with the Dutch Chamber of Commerce on Dec. 12 and which were made available online Tuesday. ...

Alphabet moves the bulk of its non-U.S. profits through this Dutch subsidiary, which has no employees. The company has used the Netherlands company since 2004 as part of a tax structure dubbed a "Double Irish" and a "Dutch sandwich." By moving most of its international profits to Bermuda, the company was able to reduce its effective tax rate outside the U.S. to 6.4 percent in 2015, according to Alphabet’s filings with the U.S. Securities and Exchange Commission. ...

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December 22, 2016 in Tax | Permalink | Comments (0)

University of Oregon, Provost Issues Statement and Report Regarding Investigation:

Dear members of the University of Oregon campus community,

A decision by Professor Nancy Shurtz to wear a Halloween costume that included black makeup on her face and hands at a party she hosted for UO law students, former students, and faculty members forced our campus to face some very difficult truths about racism, ignorance, and the state of inclusivity on our campus. Her costume mimicked the historic stereotype of blackface, and caused offense to many who witnessed it.

Today, I write with news of the disposition of the investigation led by the UO Office of Affirmative Action and Equal Opportunity as a result of complaints made to the law school following the event at her home on October 31. The investigation into whether Professor Shurtz violated any law or university policy was conducted by the Barran Liebman LLP law firm in Portland under the direction and guidance of the AAEO office and UO general counsel Kevin Reed.

Although the findings of such investigations are not usually released, in this case the public nature of the act, the resulting public outcry, its impact on campus climate, and the fact that Professor Shurtz already released a letter that identifies herself and her intentions, the university has determined that it best serves the public interest to release a redacted version of the report. A copy has been posted online.

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December 22, 2016 in Legal Education, Tax | Permalink | Comments (4)

Position Description: Visiting Assistant Professor of Clinical Law:

University of Minnesota Law Clinics, the clinical program of the University of Minnesota Law School, welcomes applicants for a visiting assistant professor position in its Ronald M. Mankoff Tax Clinic. The Tax Clinic is an in-house clinic partially subsidized with a grant from the IRS. The position is a 12-month, full-time position, and the entire position is contingent on funding through the IRS LITC program. The Tax Clinic enrolls twelve students and is a 7-credit course that runs Fall through Spring.

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December 22, 2016 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

Derek Muller (Pepperdine), As 1L Class Sizes Stabilize, One In Nine Law School Enrollees Are Not a Part of a JD Program:

[O]verall enrollment in in JD programs is starting to stabilize--not entirely, as the larger incoming classes work their way through the system and are replaced with smaller incoming classes. But total JD enrollment is now at a 42-year low, at 110,951. ...

In contrast, non-JD legal enrollment continues to grow steadily. It's up to 13,677 total enrolled in non-JD programs. ... Non-JD enrollment is [now] 11% of a law school's total enrollment.

December 22, 2016 in Legal Education | Permalink | Comments (0)

Following up on yesterday's post, The IRS Scandal, Day 1322: Government Denies That It Continues To Harass Tea Party Group:  

Plaintiff Texas Patriots Tea Party’s Reply in Support of its Motion to Clarify Preliminary Injunction:

In its response, the IRS again reverses position. Three weeks ago, after it insisted it would deny TPTP unless it responded within 30 days, emergency relief was needed just to allow the current motion. Yet now, the IRS professes bewilderment: had TPTP only asked, its request would have been granted. This claim is stunning. Just a week before TPTP moved for relief, TPTP stated its position in a conference with the Court. A far from “amenable” IRS adamantly opposed it. The IRS rewrites history, perhaps, to obscure the true reason for its last-minute change of heart: it wants this Court to pronounce that the IRS’s new position is a benevolent accommodation of TPTP, outside of the “ordinary course.” This plea for the Court’s blessing is the sole remaining issue now that the IRS agrees to TPTP’s request, but this Court should deny it. The IRS’s latest bob and weave is another effort to avoid accountability. It cynically trades “accommodation” of TPTP for judicial approval of its continuing use of “neutral” policies that exacerbate the targeted groups’ injuries. Most depressingly, it shows that 42 months into this case, the IRS remains more focused on saving face than unwinding the harms it has caused.

Previous TaxProf Blog posts:

• The IRS Scandal, Day 983: U.S. District Court Certifies Class Action Against the IRS by Tea Party Groups (Jan. 17, 2016)
• The IRS Scandal, Day 986: Tea Party Class Action Against IRS Abuse May Proceed (Jan. 20, 2016)
• The IRS Scandal, Day 998: NorCal Tea Party Patriots v. IRS — Grassroots Or Astroturf? (Feb. 1, 2016)
• The IRS Scandal, Day 1061: IRS Foot-Dragging (Apr. 4, 2016)
• The IRS Scandal, Day 1279: WSJ — Another Federal Court Says The IRS Continues To Harass Conservative Groups (Nov. 8, 2016)
• The IRS Scandal, Day 1281: Another Federal Court Says The IRS Continues To Harass Conservative Groups (Nov. 10, 2016)
• The IRS Scandal, Day 1322: Government Denies That It Continues To Harass Tea Party Group (Dec. 21, 2016)

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December 22, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

TaxProf Blog op-ed:  More Thoughts on the ABA’s Bar Pass Standard Proposal, by Austen L. Parrish (Dean, Indiana):

Monday, in an op-ed on this blog, deans Craig Boise (Syracuse) and Andrew Morriss (Texas A&M) responded to a periodic column I write for the Indiana Lawyer. Deans Boise and Morriss disagreed with my conclusion that the ABA House of Delegates should reject the proposal to impose a 75% national bar pass standard as a requirement for accreditation.

If we disagreed simply over the wisdom of the proposed new ABA standard, I would not write. In their op-ed, however, Deans Boise and Morriss say that I believe that law schools “should not be held accountable for their students’ performance,” that the ABA should adopt standards “to ensure [law school] survival rather than the success of law students,” and that I believe “bar exams are merely devices to limit entry into the profession.” But that’s not what I wrote. Nor is it what I believe. And it’s not what others who share my concerns believe. On the contrary, as I said in my original piece, the ABA should withdraw accreditation from any school found to be predatory, as long as they are transparent in what they are doing.

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December 21, 2016 in Legal Education | Permalink | Comments (2)

Inside Higher Ed, Academic 'Moneyball':

MIT management professors push data-based model they say is more predictive of an academic's future research success than traditional methods of peer review in tenure.

Michael Lewis’s 2003 book, Moneyball — later made into a movie starring Brad Pitt — tells the story of how predictive analytics transformed the Oakland Athletics baseball team and, eventually, baseball itself. Data-based modeling has since transcended sport. It’s used in hiring investment bankers, for example. But is academe really ready for its own “moneyball moment” in terms of personnel decisions?

A group of management professors from the Massachusetts Institute of Technology think so, and they’ve published a new study [Tenure Analytics: Models for Predicting Research Impact)] on a data-driven model they say is more predictive of faculty research success than traditional peer-based tenure reviews. In fact, several of the authors argue in a related essay [‘Moneyball’ for Professors?] in MIT Sloan Management Review that it’s “ironic” that “one of the places where predictive analytics hasn’t yet made substantial inroads is in the place of its birth: the halls of academia. Tenure decisions for the scholars of computer science, economics and statistics — the very pioneers of quantitative metrics and predictive analytics — are often insulated from these tools.”

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December 21, 2016 in Legal Education | Permalink | Comments (2)

New York Times, They Thought They Qualified for Student Loan Forgiveness. Years Later, the Government Changes Its Mind.:

Hundreds of thousands of people with piles of federal student loan debt had not been too concerned because they were counting on a federal government program that would forgive those loans if they worked at least 10 years in a public service job.

But what happens if the definition of “public service” seemed to change midway through that decade?

On Tuesday, the American Bar Association and four lawyers who thought they qualified filed suit against the Department of Education trying to answer that question. The department had informed several of them that their jobs would make them eligible for loan forgiveness, but they later received letters saying that the ruling had changed.

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December 21, 2016 in Legal Education | Permalink | Comments (11)

Kevin T. Keen (Baker & McKenzie, Zurich), The Only Thing Certain Is Uncertainty: The Future Of Estate Planning Without The Federal Estate Tax, 51 Real Prop. Tr. & Est. L.J. 129 (2016):

Given the current political environment, the possibility of a federal estate tax repeal has seemingly become more likely. The effect of a possible near-term repeal of the federal estate tax creates further uncertainty in a field that is constantly evolving. This uncertainty is nothing new. However, taking into consideration the substantial and cascading changes of the American Taxpayer Relief Act of 2012, focusing on current proposed legislation to repeal the estate tax is important to present estate planning efforts. ...

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December 21, 2016 in Scholarship, Tax | Permalink | Comments (0)

Following up on my recent posts:

• Who Is To Blame For UC-Hastings 'Horrific' 51% Bar Pass Rate? (Dec. 7, 2016)
• July 2016 California Bar Exam Results: Nine Law Schools (Including UC-Hastings) Are At Risk Of Failing ABA's Proposed New Bar Passage Accreditation Standard (Dec. 13, 2016)

The Recorder, UC-Hastings Law Dean to Focus on Bar Passage, Real Estate Development:

Now that he has been given the role full time, UC-Hastings College of the Law Chancellor and Dean David Faigman has big plans to bolster the school's stature, including improving what he called a "horrific" bar passage rate. Hastings' board of directors unanimously voted to keep Faigman on after a search committee evaluated nearly 100 candidates. ...

"I am absolutely incredibly optimistic about where we're going as a school, because I think we have the pieces in place to really catapult into national preeminence," Faigman said. "I have every intention of making UC-Hastings a national powerhouse." ...

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December 21, 2016 in Legal Education | Permalink | Comments (8)

Following up on my previous post, Access Group Awards $1.28 Million In Grants To Six Law Schools, ABA & ABF:  The American Bar Foundation seeks to hire a visiting scholar and the doctoral fellow. The goal of both programs is to advance scholarship examining access, affordability, and value in legal and higher education:

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December 21, 2016 | Permalink | Comments (0)

Hayes Holderness (Visiting Assistant Professor, Illinois) has accepted an entry-level tenure track position at Richmond:

Professor Holderness received his J.D., cum laude, and LL.M. in Taxation from the New York University School of Law. Before entering law teaching, he served as a Tax Policy Fellow for the United States Congress’ Joint Committee on Taxation, where he assisted in the drafting and analysis of proposed federal tax legislation. Professor Holderness was also a practicing attorney as a member of the state and local tax group of McDermott Will & Emery LLP, where he worked on a variety of tax matters. ...

Professor Holderness focuses his scholarship on issues of state and local taxation. Specifically, he is interested in the interaction between multiple overlapping levels of governmental jurisdiction and the effect of emerging technologies and means of doing business on current models of taxation.

His two most recent articles are:

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December 21, 2016 in Scholarship, Tax | Permalink | Comments (2)

Following up on my previous posts on NorCal Tea Party Patriots v. IRS, No 1:13-cv-00341 (S.D. Ohio):

• The IRS Scandal, Day 983: U.S. District Court Certifies Class Action Against the IRS by Tea Party Groups (Jan. 17, 2016)
• The IRS Scandal, Day 986: Tea Party Class Action Against IRS Abuse May Proceed (Jan. 20, 2016)
• The IRS Scandal, Day 998: NorCal Tea Party Patriots v. IRS — Grassroots Or Astroturf? (Feb. 1, 2016)
• The IRS Scandal, Day 1061: IRS Foot-Dragging (Apr. 4, 2016)
• The IRS Scandal, Day 1279: WSJ — Another Federal Court Says The IRS Continues To Harass Conservative Groups (Nov. 8, 2016)
• The IRS Scandal, Day 1281: Another Federal Court Says The IRS Continues To Harass Conservative Groups (Nov. 10, 2016)

United States' Response to Plaintiff's Motion to Clarify Preliminary Injunction (Dec. 14, 2016) (citations & footnotes omitted):

In its Motion, Plaintiff Texas Patriots Tea Party states that the relief it seeks is for the IRS to “finish developing TPTP as it was prepared to do in 2013 with any additional inquiry limited to (1) what the IRS had then identified as new issues raised in, or still to be clarified from, TPTP’s response to the second development letter; and (2) facts regarding TPTP’s activities on or before March 2013.” Prior to the filing of this Motion, TPTP did not inform the United States of the relief sought. Had TPTP done so, the United States would have been amenable to that relief and the parties likely would have been able to resolve the issue extra-judicially. In fact, on November 14, 2016, during a meet-and-confer telephone call regarding the TPTP development questions, counsel for the United States inquired whether TPTP’s concerns may be addressed by limiting the time frame of the questions to lessen the burden on TPTP. TPTP’s counsel dismissed the suggestion and, prior to the filing of the Motion, did not indicate any renewed interest in pursuing that avenue of resolution. However, the United States is still amenable to resolving this issue by limiting the requested information to the time period prior to March 2013. The United States is also amenable to resolving this matter by agreeing to allow TPTP to submit the additional information it believes would be relevant to establish whether it is entitled to tax exempt status. While the IRS issued the development letter in the ordinary course, TPTP can decide whether to respond fully, incompletely, or with different information. However, the United States requests that any Court order along those lines clarify that it is not in the ordinary course but is an accommodation for TPTP and require that any additional information be submitted within 30 days.

In the event TPTP is not amenable to the accommodations the United States is willing to make to resolve this Motion, the IRS is justified in pursuing answers to the questions it has posed to TPTP. TPTP argues that, by seeking additional information, the IRS is not processing its application in the “ordinary course,” but this argument rests on two faulty assumptions: (1) that TPTP’s application was complete and “on the path to approval” in August 2013 and (2) that the IRS does not ordinarily ask applicants to provide information about their activities covering a time frame of more than six to nine months. Neither of these assumptions is correct. Prior to the stay requested by TPTP, the IRS was processing its application in the ordinary course, and contrary to TPTP’s assertions, TPTP now seeks extraordinary treatment.

TPTP also seeks to poison the well by misrepresenting the facts of its case and falsely implying, without any basis, that Department of Justice (DOJ) counsel and IRS Chief Counsel (IRS Counsel) attorneys improperly influenced the processing of TPTP’s application. Plaintiff’s allegations break down under the weight of false assumptions and misleading recitations. Specifically, whether by design or mistake, TPTP makes two fundamentally incorrect factual assertions in telling its story. First, TPTP erroneously claims that it was “on the path to approval” in August 2013. This claim is based on a mischaracterization of the roles of Tax Law Specialist Emily Mangrum and IRS Counsel Preston Quesenberry in processing TPTP’s application and ignores the then-current process used to review applications. Second, and more disturbingly, TPTP makes false assumptions regarding material withheld under the attorney-client and work product privileges, incorrectly filling in the gaps to infer that the IRS Office of Chief Counsel and the Department of Justice inappropriately attempted to influence the processing of TPTP’s application. These inferences are demonstrably false. As a result of the severity of these accusations, the United States is compelled to release the unredacted documents, as the actual redacted text is both banal and consistent with the government’s position throughout this litigation. Reviewing these materials in their entirety establishes that TPTP’s interpretation of the timeline is without any basis in fact. Furthermore, TPTP’s argument that it was “on the path to approval” does not withstand scrutiny in light of the merits of TPTP’s application under 26 U.S.C. § 501(c)(4). Simply put, TPTP has not met its burden of showing that its campaign intervention activity falls within permissible limits, and that it qualifies for tax exempt status under § 501(c)(4). As a result, the IRS is within its rights to seek additional information to determine whether TPTP qualifies for tax exempt status. Finally, both the scope of the development questions and the nature of the timeframe are adapted from the template questions that the IRS uses for all organizations that raise issues similar to those raised by TPTP’s application. The IRS is processing TPTP’s application in the ordinary course and in compliance with this Court’s Order on TPTP’s Motion for Preliminary Injunction. No further “clarification” is needed. ...

TPTP bases its arguments on false assumptions bolstered by improper and demonstrably false insinuations of inappropriate involvement by DOJ and IRS counsel attorneys. However, the facts show that the IRS’s development questions are in the ordinary course. Accordingly, the IRS is in the process of complying with this Court’s Order to process TPTP’s application in the ordinary course. The United States is amenable to resolving this issue by limiting the time period of the information requested. The United States is also amenable to resolving this matter by agreeing to allow TPTP to submit the additional information it believes would be relevant to establish whether it is entitled to tax exempt status. While the IRS issued the development letter in the ordinary course, TPTP can decide whether to respond fully, incompletely, or with different information. However, the United States requests that any Court order along those lines clarify that this is an accommodation for TPTP, not the ordinary course, and require that TPTP submit any additional information within 30 days.

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December 21, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (4)

Following up on yesterday's post, It Begins . . . Department Of Education Cuts Off Federal Student Loans For Charlotte Law School, Effective Dec. 31:

• Letter, Department of Education
• Press Release, Department of Education
• Statement, Department of Education
• Statement, Barry Currier (Managing Director, ABA Section of Legal Education and Admissions to the Bar)
• Statement, Charlotte Law School

ABA Journal, Federal Student Financial Aid Yanked at Charlotte School of Law:

“This is potentially a cataclysmic event for legal education. The Department of Education’s reasoning could easily be extended to other law schools,” Paul Caron, an associate dean and professor at Pepperdine School of Law, wrote in an email to the ABA Journal. “Hopefully, today’s action by the DOE will finally cause law schools to confront the existential crisis facing legal education,” says Caron, who writes at Tax Law Prof Blog.

Bloomberg Law: Will This Law School Close After Feds Cut Funding?, by Kyle McEntee:

Charlotte School of Law may be on the brink of closure, which, as I have argued, would be the just result for a school that continues to exploit students.

On Monday, the U.S. Department of Education announced it will end Charlotte School of Law’s access to federal student financial aid, also known as Title IV funds. As a result, students who plan to enroll next semester, which begins Jan 9, 2017, can no longer receive federal student loans.

Charlotte Law is among several dozen law schools that my organization, Law School Transparency, identified as using; exploitative admissions and retention policies. We argue these schools adopted such policies to maintain the flow of tuition dollars, usually paid for with federal student loans.

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December 20, 2016 in Legal Education | Permalink | Comments (6)

Andy Grewal (Iowa), The Un-Precedented Tax Court, 101 Iowa L. Rev. 2065 (2016):

Around the turn of this century, a "highly-charged" debate erupted over unpublished federal appellate court opinions. Some argued that the common prohibition against citation to those opinions posed no constitutional problems, while others argued that no-citation rules improperly eliminated a significant check on the judicial power.

This debate might have been expected to reach, but has not yet reached, issues related to the purportedly nonprecedential nature of most Tax Court opinions. Under court practices, Memorandum Opinions nominally lack precedential value. And by Congressional fiat, Summary Opinions cannot be cited as precedent.

This Article explores the constitutional and practical problems raised by non-precedential Tax Court opinions.

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December 20, 2016 in Scholarship, Tax | Permalink | Comments (0)

Following up on my previous post, 'The Prosecution Does Not Believe That Wendi Ordered The Hit' On Dan Markel:  David Lat (Above the Law), The Dan Markel Case: Watch Your Words About Wendi Adelson:

[S]ome posters [on Websleuths] have criticized me because they disagree with my view that Wendi Adelson did not know in advance about the murder of her ex-husband Dan Markel and was not involved in planning it. ...

I am not a fan of Wendi Adelson as a person. She was perfectly nice the one time I met her in person, but I know from talking to Dan that she put him through hell. I thought that the way she handled the end of their marriage — taking the kids (and many of the marital possessions) and splitting while he was out of town, leaving behind a mattress with divorce papers on top — was just abominable. And I think it’s terrible — and terribly sad — that she has changed the names of her two children with Dan to remove all traces of him from their lives. (She changed their surnames from “Markel” to “Adelson” and also removed the middle name of one child who was named in honor of one of Dan’s late relatives.)

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December 20, 2016 in Legal Education | Permalink | Comments (10)

Leslie M. Levy, Section 2036 of the Internal Revenue Code: A Practitioner's Guide, 51 Real Prop. Tr. & Est. L.J. 75 (2016):

This Article summarizes the current law and issues surrounding section 2036 of the Internal Revenue Code (Code). Specifically, this Article examines retained rights that trigger section 2036. It also addresses the issues surrounding the definition of a “bona fide sale” and the different tests employed by different courts. Lastly, this Article examines the definition of “adequate and full consideration in money or money’s worth” and two highly debated issues in that area.

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December 20, 2016 in Scholarship, Tax | Permalink | Comments (0)

Following up on yesterday's TaxProf Blog op-ed by Deans Boise and Morriss, The Shameful Truth Is That Many Law Schools Have Admitted Students With Low LSAT Scores To Prop Up Tuition Revenue And Now Seek To Avoid Accountability For The Ensuing Poor Bar Passage Results:  Robert Anderson (Pepperdine), Deans, Denial, and the California Bar Exam:

On Thursday a number of California law deans wrote pieces in the Daily Journal criticizing the State Bar of California over the abysmally low bar passage rates some of their schools achieved on the July 2016 exam. Many of the deans' perspectives displayed a profound lack of understanding of how the bar exam works and even ventured into conspiracy theories, leading them to place the blame where it doesn't belong. Sadly, not of them pointed the finger where the blame actually belongs, which is with the deans and their faculties themselves. This is an illustration of the psychological defense mechanism called denial.

The reason that the 2016 pass rate declined so much is that deans, faculties, and to some extent parent universities are not willing to downsize faculty and class size adequately to meet the current lower demand for the JD degree, as I wrote previously. The deans didn't mention a word about this in their blame shifting exercise. I could spend days knocking down all the incorrect information disseminated by these deans, so I had to pick a few of the most egregiously uninformed comments to discuss. ...

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December 20, 2016 in Legal Education | Permalink | Comments (5)

Wall Street Journal, Apple Hits Back Over EU Irish-Tax Decision:

The European Commission, which released the details of its decision on Monday, says that Ireland was “inconsistent” in applying tax laws.

Apple on Monday fought back against the European Union’s decision that €13 billion ($13.6 billion) in tax breaks the company received from Ireland were illegal, as the feuding sides dug in for a protracted legal battle.

The iPhone maker filed its appeal on the day the European Commission disclosed new details of the 130-page decision from August, which ordered Ireland to recoup the allegedly unpaid taxes from Apple.

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December 20, 2016 in Tax | Permalink | Comments (0)

David Barnhizer (Cleveland State), The ABA’s New 75% Bar Passage Rule:

The issue of ABA law school accreditation and the passage rates achieved by law schools is obviously quite volatile. The arguments pro and con the proposed ABA rule on accreditation and the need for law schools to achieve a 75% bar passage rate over a two year period contain hidden agendas that involve preset political positions and the self interest of a variety of groups, including the ABA, HBCU’s and law teachers who are already threatened by sharply falling enrollments.

I have tried to stay away from this issue for several reasons, one of which is that I am working away on a book on Artificial Intelligence/robotics (AI/robotics), job destruction and the resulting harm to the remnants of our “democracy” caused by having a very large number of chronically unemployed people who must somehow be supported in a system that has massive and growing governmental debt issues. As I write that book it has become increasingly apparent that job loss on all levels, including law, promises to be considerably more significant and rapid than we might think.

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December 20, 2016 in Legal Education | Permalink | Comments (0)

New York Times:  Election Therapy From My Basket of Deplorables, by Maureen Dowd:

My little basket of deplorables, as I call my conservative family, gloated with Trump toasts galore, and [my brother] Kevin presented me with his annual holiday column with an extra flourish. ... [H]ere is what Kevin, an affluent, educated suburbanite, has to say in his column, titled an “Election Therapy Guide for Liberals”:

Donald Trump pulled off one of the greatest political feats in modern history by defeating Hillary Clinton and the vaunted Clinton machine.

The election was a complete repudiation of Barack Obama: his fantasy world of political correctness, the politicization of the Justice Department and the I.R.S., an out-of-control E.P.A., his neutering of the military, his nonsupport of the police and his fixation on things like transgender bathrooms. Since he became president, his party has lost 63 House seats, 10 Senate seats and 14 governorships. ...

As Eddie Murphy so eloquently stated in the movie “48 Hrs.”: “There’s a new sheriff in town.” And he is going to be here for 1,461 days. Merry Christmas.

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December 20, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (10)

Following up on my previous post, ABA Places Charlotte Law School On Probation, Censures Valparaiso: U.S. Department of Education, Charlotte School of Law Denied Continued Access to Federal Student Aid Dollars:

The U.S. Department of Education today announced that on Dec. 31, 2016, it will end access to federal student financial aid for Charlotte School of Law (CSL), a for-profit member institution in the InfiLaw System. This action furthers the Department’s commitment to vigorously protect students, safeguard taxpayer dollars, and increase institutional accountability among postsecondary institutions.

Following a review of the relevant information, the Department concluded that CSL’s non-compliance with the fundamental standards set by its accreditor, the American Bar Association (ABA), resulted in its violation of the Higher Education Act, the Department’s regulations, and CSL’s Program Participation Agreement with the Department. Additionally, the Department concluded that CSL made substantial misrepresentations to current and prospective students regarding the nature and extent of its accreditation and the likelihood that its graduates would pass the bar exam. Both findings merit denial of the school’s request for continued participation in the federal student aid programs.

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December 19, 2016 in Legal Education | Permalink | Comments (8)

Senate Finance Committee Majority Staff Report, A Review of IRS Employee Travel: Reductions in IRS Long-Term Travel Spending Needed:

The Committee’s review of IRS travel policies as well as the actual long-term travel habits of some of its employees have led to a number of troubling findings. The number of employees who travel more than half of the year and the cost at which they do so is simply unacceptable. These findings also raise questions about the travel habits of other IRS employees who were outside the scope of this review but who may have had longer travel assignments. More troubling is that the IRS has the tools within its grasp to significantly reduce travel per diem rates and yet it elects not to do so. While the IRS believes that it cannot limit payments to employees for travel expenses to levels below the per diem amount solely to reduce administrative costs, the Committee strongly disagrees with this assertion. The Committee urges the IRS to consider further internal guidance better defining long-term travel (not just for taxable purposes) and instructing approving officials to routinely reduce per diem rates for long-term travel in accordance with Section 301-11.200, Subpart C – Reduced Per Diem of the FTR and Section 1.32.11.8.2.1, Reduced Per Diem of the IRM.

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December 19, 2016 in Congressional News, IRS News, Tax | Permalink | Comments (4)

Following up on my previous post, Trump’s Emolument Tax Problem:  Andy Grewal (Iowa), Should Congress Impeach Obama for His Emoluments Clause Violations?, Yale J. on Reg.: Notice & Comment (Dec. 13, 2016):

My prior post explained how ordinary business transactions between foreign governments and Trump businesses do not create violations of the foreign Emoluments Clause. That post concluded that the term “emolument” refers only to payments made in connection with the holding of an office, and does not refer to any conceivable foreign government payment. The prior post relied on Supreme Court opinions, Office of Legal Counsel opinions, definitions in legal dictionaries, and so on.

However, some commentators, most notably Professor Richard Painter (Minnesota) and Norm Eisen (Brookings Institution), have argued for a much broader definition of emolument. The legal basis for their interpretation remains unclear  because they make no mention of Supreme Court opinions, OLC opinions, or other legal authorities, but their article in The Atlantic defines emoluments as reaching “anything of value.” (Their longer Brookings Institution report, co-authored with Larry Tribe, takes a similarly broad approach without citing relevant authorities. See page 11.) This post explains how their interpretation, if accepted, would support the impeachment of President Obama. ...

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December 19, 2016 in Political News, Tax | Permalink | Comments (4)

• Bloomberg (Carol Hymowitz & Alicia Ritcey), CEOs’ Retirement Stashes Seen Flourishing Under Trump Tax Cuts
• Bloomberg (Lynnley Browning), House Republicans’ Plan for a Tax Revolution
• Bloomberg BNA (Colleen Murphy), Anti-Union Drumbeat of Trump, Congress Spells Trouble for IRS
• Bloomberg BNA (Colleen Murphy), GOP Blueprint, Trump Leave Open Questions for IRS Future
• Bloomberg BNA (Allyson Versprille), Trump Transition Team: What Does It Mean for Tax Policy?
• Financial Times, Republicans Face Corporate Tax Rebellion

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December 19, 2016 in Tax | Permalink | Comments (0)

TaxProf Blog op-ed:  Preparing Graduates to Pass the Bar Exam Should Be a Central Obligation of All ABA-Accredited Law Schools, by Craig M. Boise (Dean, Syracuse) & Andrew P. Morriss (Dean, Texas A&M):

We write in response to Indiana University law dean Austen Parrish's recent op-ed in the Indiana Lawyer criticizing the new, higher bar passage standard approved last month by the ABA's Council on Legal Education and Admission to the Bar. See Indiana Dean: The ABA’s Troubling Focus on The Bar Exam, TaxProf Blog (Nov. 17, 2016).

Dean Parrish opposes the higher bar passage standard principally because he believes that the bar exams administered by virtually every state are not good measures of competence to practice law, and law schools therefore should not be held accountable for their students' performance on them. Unfortunately, Dean Parrish's conclusion does not follow from his premise and this mistake taints his analysis. No matter whether bar exams test practice skills or not, passing the bar exam is a hurdle that law graduates must clear to practice law. Preparing graduates to pass the bar exam has thus long been a centerpiece of legal education and represents a focus that is neither "emerging" nor "troubling." It is, in fact, a central obligation of all ABA-accredited law schools.

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December 19, 2016 in Legal Education | Permalink | Comments (10)

Daniel E. Ho (Stanford) & Mark G. Kelman (Stanford), Does Class Size Affect the Gender Gap? A Natural Experiment in Law, 43 J. Legal Stud. 291 (2014):

We study a unique natural experiment in which Stanford Law School randomly assigned first year students to small or large sections of mandatory courses from 2001 to 2011. We provide evidence that assignment to small sections closed a slight (but substantively and highly statistically significant) gender gap existing in large sections from 2001 to 2008; that reforms in 2008 that modified the grading system and instituted small graded writing and simulationintensive courses eliminated the gap entirely; and that women, if anything, outperformed men in small simulation-based courses. Our evidence suggests that pedagogical policy—particularly small class sizes—can reduce, and even reverse, achievement gaps in postgraduate education.

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December 19, 2016 in Legal Education, Scholarship | Permalink | Comments (3)

Conservative Review, How the GOP Establishment Teamed With Nancy Pelosi to Save the Corrupt IRS Chief:

The last nail in the coffin went in handily.

After Rep. Jim Jordan R-Ohio, Freedom Caucus’ outgoing chairman, invoked a privileged resolution on Tuesday to force an impeachment vote on IRS Commissioner John Koskinen, the House voted 342-72 to refer the measure back to the Judiciary Committee, where it will gather dust for the indefinite future.

It was the last maneuver available to the House Freedom Caucus’s hopes of impeaching Koskinen, who they say has lied to Congress about the targeting of conservative groups.

Wednesday afternoon, Rep. Tim Huelskamp posted an instructive timeline of events on Facebook, outlining just how GOP leaders worked with Democratic Minority Leader Rep. Nancy Pelosi, D-Ca.  to kill the impeachment effort:

After learning of conservatives [sic] plans to force the House to take a recorded vote on the impeachment resolution, GOP leaders responded by making a deal with Nancy Pelosi to use a procedural gimmick to effectively kill the effort. The little-used ‘motion to refer’ sent the impeachment resolution back to committee where it is unlikely to ever see the light of day again.” Instead of waiting for a vote on the privileged resolution on Thursday —when lawmakers intended to vote on it — Pelosi led the House Democrats in a move to table the motion. The move failed 180 to 235.

Rep. Bob Goodlatte R-Va. then offered a motion to refer the resolution back to the Judiciary Committee, which has jurisdiction over impeachment hearings. Privileged resolutions must be voted on within two days of being offered, but Pelosi’s move to table the motion on Tuesday ensured an even swifter end to the impeachment measure. ...

This week’s defeat of the effort to impeach John Koskinen is the end of the line for the many Freedom Caucus members who’ve slaved away trying to do right by their constituents, for justice.

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December 19, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (4)

Saturday:

• This Week's Ten Most Popular TaxProf Blog Posts
• The Inside Story of Apple's $14 Billion Tax Bill: The iPhone Came Out In 2007, So Why Was Apple Still Paying Taxes Like It Was 1990?
• Osofsky Reviews Satterthwaite's Tax Elections As Screens
• 'The Prosecution Does Not Believe That Wendi Ordered The Hit' On Dan Markel
• The IRS Scandal, Day 1318: More On Koskinen And Trump

Sunday:

• For The First Time, Women Outnumber Men In American Law Schools (But Not At Elite Schools)
• 2016 Tannenwald Tax Writing Competition Winners
• The Top 5 Tax Paper Downloads
• Clergy Ask Court To Reject Atheist Lawsuit Against § 107 Housing Allowances For 'Ministers Of The Gospel'
• The IRS Scandal, Day 1319: How Will The Koskinen Saga End?

December 19, 2016 in Legal Education, Tax, Weekly Tax Roundup | Permalink | Comments (0)

Following up on my previous post, More Law Degrees For Women, But Fewer Good Jobs:  according to the just-released ABA law school data, for the first time in history, there are more women (55,766, 50.32%) than men (55,059, 49.68%) enrolled in American law schools. Women 1Ls (19,032, 51.4%) outnumber male 1Ls (18,058, 48.6%). Deborah Jones Merritt (Ohio State), A Milestone for Legal Education:

After crunching the latest disclosures, there remains a strong (and statistically significant) correlation between a law school’s US News rank and its percentage of female students: On average, the better ranked schools enroll a significantly smaller percentage of women students.

Eight of the Top 10, 20 of the Top 24, and 28 of the Top 36 law schools enroll more men than women.

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December 18, 2016 in Legal Education | Permalink | Comments (0)

The Theodore Tannenwald, Jr. Foundation for Excellence in Tax Scholarship has announced the winners of the 2016 tax writing competition:

First Prize $5,000:
Jesse Boretsky (Yale), Redefining a Blurry Line: A Proposal to Reform the Taxation of Pension Fund Business and Investment Income
Faculty Sponsor:  Yair Listokin

Second Prize (tie, $2,000):

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December 18, 2016 in Scholarship, Tax, Teaching | Permalink | Comments (0)

This week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

1. [670 Downloads]  Aggressive Tax Planning & the Ethical Tax Lawyer, by Heather M. Field (UC-Hastings)
2. [344 Downloads]  The Up-C Revolution, by Gregg D. Polsky (Georgia) & Adam H. Rosenzweig (Washington University)
3. [312 Downloads]  Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, by Elizabeth Ruth Carter (LSU)
4. [289 Downloads]  IRS Issues Final and Temporary Debt-Equity Regulations Under Section 385, by David S. Miller (Proskauer, New York) & Janicelynn Asamoto Park (Proskauer, New York)
5. [193 Downloads]  Were Trump's Fake Losses Legal as Tax Deductions?, by Calvin H. Johnson (Texas)

December 18, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Following up on my previous post, Atheists Try Again To Strike § 107 Housing Allowance for 'Ministers of the Gospel':  

The Becket Fund for Religious Liberty, South Side, Chicago Pastor Fights Discriminatory Lawsuit:

Chicago-based Bishop Ed Peecher filed in court today to protect ministers and churches against a lawsuit by the Freedom From Religion Foundation, an atheist organization trying to prevent churches from providing housing benefits available to other non-profit organizations and businesses.

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December 18, 2016 in Tax | Permalink | Comments (0)

Going Concern, Accounting News Roundup:

One of the more colossal wastes of time this past year has been the effort by some House Republicans to impeach IRS commissioner John Koskinen. They were dealt a blow earlier this week when the full House voted overwhelmingly to send the matter to the Judiciary Committee.

From here it could a couple of ways: Koskinen ends up serving the rest of his term which ends in 2017 or he could be forced out after ugh Donald Trump becomes president. In a fun twist, however, Trump and Koskinen have a bit of a history. Politico's Morning Tax pointed to a New York Times article from 1975 where the two were on opposite sides of a couple real estate deals. This leaves the door open to...maybe Trump reappointing Koskinen? It's probably a longshot, but it would almost make all this worth it.

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December 18, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

1. July 2016 California Bar Exam Results: Nine Law Schools (Including UC-Hastings) Are At Risk Of Failing ABA's Proposed New Bar Passage Accreditation Standard
2. NY Times: The ‘H-Bomb’ Fizzles—The Harvard Brand Takes A Hit
3. 165 Law Schools Have Reduced The Size Of Their 1L Classes Since 2011, 53 By 33% Or More
4. The IRS Scandal, Day 1314: How The Trump Administration Can Stop IRS Abuse of Political Groups
5. 'The Prosecution Does Not Believe That Wendi Ordered The Hit' On Dan Markel
6. Does The Prosecution Believe (And Can It Prove) That Wendi Adelson (And Not Charlie Or Donna) Hired Katherine Magbanua And Sigfredo Garcia To Kill Dan Markel?
7. Judge Denies Bond For Katherine Magbanua, Charged With First Degree Murder In Killing Of Dan Markel
8. NY Times: GOP Embraces Alan Auerbach's Destination-Based Corporate Tax, Paving Way For Fundamental Tax Reform
9. What Law Prof Learned In Suing His Law School For Admissions Data
10. University Of Wisconsin Gives Administrators Final Say Over Five-Year Post-Tenure Reviews; Underperforming Faculty Will Be Placed In Remediation Program, Leading To Termination If Performance Does Not Improve

December 17, 2016 in About This Blog, Legal Education, Tax, Weekly Top 10 TaxProf Blog Posts | Permalink | Comments (0)

Bloomberg, The Inside Story of Apple's $14 Billion Tax Bill: The iPhone Came Out in 2007. So Why Was Apple Still Paying Taxes Like It Was 1990?:

“The Maxforce” is the European Union team that ordered Ireland to collect billions of euros in back taxes from Apple Inc., rattled the Irish government, and spurred changes to international tax law. You’d think it might have earned the name by applying maximum force while investigating alleged financial shenanigans. It didn’t. It’s just led by a guy named Max.

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December 17, 2016 in Tax | Permalink | Comments (0)

Leigh Osofsky (Miami), Real-World Tax Screening (JOTWELL) (reviewing Emily Satterthwaite (Toronto), Tax Elections as Screens, 42 Queen’s L.J. ___ (2016)):

The concept of “screening” taxpayers is theoretically appealing. According to optimal tax theory, our tax system should impose tax liability based on ability, which is a characteristic that reflects relative well-being. However, since ability cannot be directly observed, the tax system has to rely largely on income, a presumed surrogate of ability, as a tax base. The problem is that income is easily manipulable, making the tax system an inefficient tax on ability. Screening is a potential, partial solution to this problem.

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December 17, 2016 in Scholarship, Tax | Permalink | Comments (1)

Following up on Wednesday's post, Does The Prosecution Believe (And Can It Prove) That Wendi Adelson (And Not Charlie Or Donna) Hired Katherine Magbanua And Sigfredo Garcia To Kill Dan Markel?:  David Lat (Above the Law), The Dan Markel Case: Slow Your Roll On Wendi Adelson:

[I]s Wendi a murderess? I have defended her against speculation that she knew about or was involved in Danny’s killing, but I know that many readers hold different opinions. ...

[A] number of readers have excitedly shared with me this account of last Friday’s bail hearing for Katherine Magbanua, posted over at Websleuths by “reallybusy,” who attended in person. The juiciest part:

The prosecution made it a point to say in closing arguments “Wendi Adelson” hired KM and SG to commit the murder. No mention of Donna or Charlie. This was important because of all the speculation prior that Wendi was unaware and this murderous act was carried out on her behalf without her knowledge. The prosecution made a crystal clear point that Wendi ordered the hit.

This claim has been picked up by writers and commenters on several other widely read blogs, including TaxProf Blog (Paul Caron) and Jonathan Turley (in the comments). But is it an accurate representation of what the prosecution claimed at the hearing?

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December 17, 2016 in Legal Education | Permalink | Comments (8)

Politico Morning Tax, Koskinen Gets Expansive:

IRS Commissioner John Koskinen sat down with Tax Analysts recently, and dropped some pretty interesting tidbits — his meeting with the Trump transition team, for instance, didn’t touch on whether he’d finish his term. (He added that he’d step aside if Trump asked him to, but that he thinks it’s best for the agency if he serves until his term expires in November.)

Koskinen also said it could be a real pain for the agency if Congress does repeal Obamacare, given all the resources the IRS allocated to implement the health care law. And he said he’s concerned that the sort of treatment he received from congressional Republicans might make talented people in the private sector think twice about hopping over to the government. (Though to be fair, Trump’s Cabinet choices suggest there are still people from the business world willing to make the jump.)

Morning Tax’s favorite part of the interview was Koskinen’s discussion of how he worked with Trump on a Manhattan hotel deal four decades ago. Koskinen, who called Trump “irrepressible,” said the real estate magnate didn’t coast like other children of wealth. “It was clear that Donald was going to make a career for himself,” Koskinen said. “I mean, he didn't have a hobby. He worked all day and all night.” (Bonus content: Trump called Koskinen to congratulate him after the IRS chief was nominated in 2013, and has since then sent him a note to say that he’d been criticized for defending the commissioner in a television interview.)

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December 17, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

This week, Joe Kristan (CPA & Shareholder, Roth & Company (Des Moines, Iowa); Editor, Tax Update Blog) discusses how Sec. 263A can apply to a cash-basis farmer.

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December 16, 2016 in New Cases, Tax, Weekly Tax Roundup | Permalink | Comments (0)

This week, Ari Glogower (Ohio State) reviews a new article by Donald Marron (Urban Institute), Goldilocks Meets Private Equity: Taxing Carried Interest Just Right, 31 Tax Policy and the Economy (Urban Institute & Brookings Institution Tax Policy Center, 2016).

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December 16, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (2)

• ABA Journal, With question of accreditation looming, Texas OKs bar exam for UNT Dallas law grads
• ABA Section of Legal Education and Admissions to the Bar, Standard 509 Information Reports
• Above the Law, California Bar Exam Results By Law School (2016)
• Robert Anderson (Pepperdine), Top Ten Myths About the Bar Exam
• Paul Caron (Pepperdine), California Law School Deans Blast State Bar's Historically Low Pass Rate On July 2016 Exam
• Paul Caron (Pepperdine), July 2016 California Bar Exam Results: Nine Law Schools (Including UC-Hastings) Are At Risk Of Failing ABA's Proposed New Bar Passage Accreditation Standard

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December 16, 2016 in Legal Education, Weekly Legal Education Roundup | Permalink | Comments (0)

Tax Prof speakers at the 29th Annual George Washington-IRS International Tax Institute:

• Karen Brown (George Washington)
• Linda Galler (Hofstra)
• Daniel Hemel (Chicago)
• Robert Peroni (Texas)
• Diane Ring (Boston College)
• David Rosenbloom (NYU)

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December 16, 2016 in Conferences, Tax | Permalink | Comments (0)

Following up on my previous posts (links below) on the July 2016 California bar exam carnage: several California law school deans have written op-eds criticizing the California State Bar for the historically low pass rate (43% overall, 62% for graduates of California's 21 ABA-approved law schools):

• Erwin Chemerinsky (Dean, UC-Irvine), Does the Bar Even Measure the Right Skills?: "An even more important question than why the results were so low this year is whether the bar exam is even measuring the skills that show a person is likely to be a competent attorney."
• David L. Faigman (Acting Dean, UC-Hastings), It's Not the State Bar's Responsibility to Control Lawyer Supply: "The issue of whether there are too many lawyers is a fair one to ask, but it is not the California Bar's job to control that supply. Such a protectionist motive, if that is the bar's intent, presents substantial policy and, possibly, legal concerns."

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December 16, 2016 in Legal Education | Permalink | Comments (5)

Charlotte Crane (Northwetsern), Trojan Horse, or Merely a Mask for the Costume Ball? (JOTWELL) (reviewing Edward Kleinbard (USC), The Trojan Horse of Corporate Integration, 152 Tax Notes 957 (Aug. 15, 2016)):

Edward Kleinbard’s The Trojan Horse of Corporate Integration critiques the U.S. Senate Finance Committee’s current proposal for corporate integration. This is an important read for those who have not yet come to grips with the forces at play in contemporary tax policy. Kleinbard refers to these forces as the “political economy agenda” behind the proposal. That agenda has as much to do with appearances relating to tax liabilities as it does with any cash actually being paid. ...

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December 16, 2016 in Scholarship, Tax | Permalink | Comments (0)

Following up on my previous posts (links below) on the July 2016 California Bar Exam carnage: Derek Muller (Pepperdine), The Collapse of Bar Passage Rates in California:

My colleague Paul Caron has helpfully displayed the data of the performance of California law schools in the July 2016 California bar exam. It's worth noting that the results aren't simply bad for many law schools; they represent a complete collapse of scores in the last three years.

The chart here shows the performance of first-time California bar test-takers who graduated from California's 22 ABA-accredited law schools in the July 2013, 2014, 2015, and 2016 administrations of the exam.

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December 16, 2016 in Legal Education | Permalink | Comments (1)

Bloomberg BNA, IRS Chief Would Continue to Lead Agency If Trump Were to Ask:

Internal Revenue Service Commissioner John Koskinen said he would be willing to remain in the agency’s top job if President-elect Donald Trump were to re-appoint him.

“I’ve never said no. That’s part of my problem,” he told reporters at an event sponsored by George Washington University Law School and the IRS. “It’s an honor to be the commissioner.”

President Barack Obama appointed Koskinen, 77, to the job in 2013. His term ends next November. Members of the conservative House Freedom Caucus tried to impeach Koskinen during his term, saying he improperly withheld evidence during investigations into the agency’s handling of organizations applying for tax-exempt status. Moderate Republicans and Democrats said the effort was unwarranted.

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December 16, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)