Tax Law: Practitioner Series eJournal最新文献

{"title":"Trust Planning and the Washington State Capital Gains Tax","authors":"J. Coppieters","doi":"10.2139/ssrn.3868404","DOIUrl":"https://doi.org/10.2139/ssrn.3868404","url":null,"abstract":"On April 25, 2021, the Washington State Legislature enacted a new state capital gains tax. Before now, Washington state has been one of the few states that does not impose a tax on either income or capital gains. Because of limitations imposed by the Washington State Constitution, the legislature has been forced to characterize the tax as an excise tax, rather than treat it as an income tax as would the federal government and every other state. Based on the statute’s structure and its presentation as an excise tax, whether intentionally or unintentionally, the legislature appears to have excluded both the trustees and beneficiaries of non-grantor trusts from being subject to the tax. This Article reviews the difference between grantor and non-grantor trusts, examines the apparent discrepancy between the two under the statute, and explores tax strategies planners and clients might consider pursuing in the wake of the new tax.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131989663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Serenity Now! The (Not So) Inclusive Framework and the Multilateral Instrument","authors":"Y. Brauner","doi":"10.2139/ssrn.3885602","DOIUrl":"https://doi.org/10.2139/ssrn.3885602","url":null,"abstract":"The Article demonstrates, based on publicly available data and using a variety of indicators that the most salient initiatives to promote inclusivity within the international tax regime (Country-by-Country Reporting, the Multilateral Instrument, and the Inclusive Framework) have at best done little to increase the meaningful participation of non-OECD countries in the regime, and at worst been disingenuous. The opacity of the examined initiatives and the difficulty of measuring inclusivity dictated this indirect methodology, yet the picture it portrays is unambiguous. The article finally explain why the OECD invited non-Member States to join these initiatives, and why the latter have nominally joined, using Hirschman’s exit and voice framework. Based on this analysis, It concludes that the problems that led to the initiation of inclusive fora within the international tax regime will not “go away” with such nominal inclusivity, and that only meaningful inclusivity has the chance to stabilize the international tax regime.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114816498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Recourse and Nonrecourse Debt: What Are the Federal Income Tax Consequences When the Character of Debt Changes","authors":"Kenneth C. Weil","doi":"10.2139/ssrn.3660637","DOIUrl":"https://doi.org/10.2139/ssrn.3660637","url":null,"abstract":"Abstract \u0000 \u0000When encumbered property is sold, the taxation of that sale is different if \u0000the sale involves recourse debt as opposed to nonrecourse debt. This difference \u0000raises an intriguing question: when debt changes from recourse to nonrecourse, \u0000or vice versa, which rules will control? Examples of when debt \u0000changes from recourse to nonrecourse, or vice versa, include bankruptcy discharges, \u0000nonjudicial foreclosures in some states with deficiency statutes, some \u0000short sales in deficiency states, and the operation of section 1111(b) of the \u0000Bankruptcy Code. \u0000 \u0000The Cottage Savings regulations, Regulation section 1.1001-3, have specific \u0000provisions designed to address what happens when debt changes from \u0000recourse to nonrecourse, or vice versa. These regulations are sometimes helpful \u0000to creditors (e.g. , elections under section 1111(b)(2) of the Bankruptcy \u0000Code). Sometimes, they appear punitive to debtors (e.g. , the mandatory conversion \u0000of recourse debt into nonrecourse debt in Chapter 11). And, sometimes, \u0000they do not provide an answer (e.g. , short sales and nonjudicial foreclosures \u0000in deficiency states). \u0000 \u0000The Author believes that when recourse debt is converted to nonrecourse \u0000debt by operation of a discharge in bankruptcy, there should be a discharge \u0000of indebtedness event, and thereafter, the nonrecourse rules would apply, albeit \u0000with the nonrecourse debt reduced by the amount of the debt discharged. \u0000As a result, after discharge, the nonrecourse debt would be reduced to the fair \u0000market value of the collateral. Upon a subsequent sale, the amount realized \u0000by the debtor would be the fair market value of the property (or the new taxvalue \u0000of the debt if the property declines in value). The current rule, with the \u0000amount realized equaling the old face value of the debt, would no longer apply. \u0000This change would put an end to the punitive gains resulting from the \u0000current nonrecourse-sale rules. Unfortunately, this proposal is probably not \u0000administratively feasible.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"10 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116795047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tax and Cross-Collateralized Nonrecourse Liability","authors":"Douglas A. Kahn, J. Kahn","doi":"10.5744/FTR.2021.2005","DOIUrl":"https://doi.org/10.5744/FTR.2021.2005","url":null,"abstract":"This Article explores the tax treatment of cross-collateral nonrecourse debt. When using the term cross-collateral debt, we are referring to nonrecourse debt that is connected with more than one piece of property. While tax issues concerning cross-collateralized properties can arise in several circumstances, the focus of this Article is on the tax treatment of a transfer of property subject to a cross-collateralizednonrecourse liability to a controlled corporation in exchange for stock that qualifies for some or all nonrecognition under § 351. The Article also discusses two other tax issues involving cross-collateralizednonrecourse liability—namely, cancellation of debt and determination of basis issues.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122880456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Allocating Multinational Income Generated by Intangible Assets: An Industry Perspective","authors":"R. Sansing","doi":"10.2139/ssrn.3558172","DOIUrl":"https://doi.org/10.2139/ssrn.3558172","url":null,"abstract":"This study develops a model in which a multinational firm creates a brand that generates income in multiple countries. Many firms attempt to develop a brand, but only one firm succeeds. The firm that creates the brand earns positive residual profits. The industry as a whole does not, as the residual profits are competed away by firms trying to create the brand. There is a unique allocation of taxable income among countries that is distributionally neutral at the industry level. This allocation can be achieved using the comparable profit method, but not by using other methods such as the residual profit-split method or formulary apportionment methods based on relative sales or residual profits. The message of the study is that any analysis of the taxation of residual profits is incomplete if it does not consider all the investments, including failed investments, associated with the creation of those residual profits.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"385 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122777765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ninth Circuit Brief of Law Academics and Professors as Amici Curiae in Opposition to the Petition for Rehearing En Banc in Altera v. Commissioner","authors":"Leandra Lederman, S. Morse, Stephen E. Shay, Clint Wallace, R. Avi-Yonah, Lily L. Batchelder, Jeremy Bearer-Friend, Joshua D. Blank, Leslie M. Book, B. Camp, Noel B. Cunningham, Victor Fleischer, J. Fleming, Keith Fogg, D. Gamage, Ari D. Glogower, Mitchell A. Kane, Ariel Jurow Kleiman, Edward D. Kleinbard, Rebecca M. Kysar, Zachary D. Liscow, Ruth Mason, Omri Y. Marian, R. Peroni, Darien Shanske, Daniel N. Shaviro, John P. Steines, Bret Wells, Eric M. Zolt","doi":"10.2139/ssrn.3450553","DOIUrl":"https://doi.org/10.2139/ssrn.3450553","url":null,"abstract":"The purpose of this brief is to correct and respond to two arguments in Petitioner-Appellee Altera’s petition for rehearing en banc and briefs of amici supporting the petition for rehearing. \u0000 \u0000First, Treasury’s regulation requiring cost sharing of stock-based compensation and the Ninth Circuit panel’s decision are entirely consistent with longstanding precedents, practices and understandings regarding the meaning of the arm’s length standard. \u0000 \u0000Second, reversal of the U.S. Tax Court by a Court of Appeals is an ordinary occurrence that reflects the federal courts’ hierarchy and is not a basis for granting en banc review.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121171581","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Curious Case of Section 461(l): Why This Unclear and Unwise New Rule Should Be Construed as Narrowly as Possible","authors":"Steven Z. Hodaszy","doi":"10.2139/SSRN.3389335","DOIUrl":"https://doi.org/10.2139/SSRN.3389335","url":null,"abstract":"Section 461(l) is one of the more curious provisions of the sweeping Tax Cuts and Jobs Act that was enacted at the end of 2017. Section 461(l) prohibits owners of non-C-corporation businesses from offsetting trade-or-business losses above a certain threshold against nonbusiness income in the taxable year of the loss. Under the new rule, such “excess business losses” are instead carried over to the next taxable year as a net operating loss. The “excess” losses that section 461(l) disallows are active business losses—that is, losses borne by material participants in the business in question. This marks a significant change from prior law, under which active business losses were generally deductible against nonbusiness income without limit. In the first instance, section 461(l) is curious because it introduces a substantial new tax burden on small-business owners—in direct contradiction to Congress’s oft-stated goal of supporting small business. What makes the new loss limitation even more perplexing is that it serves no useful policy purpose whatsoever. Instead, section 461(l)’s excess-business-loss limitation violates a foundational income tax precept by preventing a taxpayer from netting all of the costs of producing income against gross receipts. In so doing, the new rule causes such a taxpayer to be taxed on an amount greater than her economic income. Indeed, in some cases, it requires a taxpayer to pay federal income tax even though she incurs an economic loss for the year. On top of all that, there are myriad ambiguities in section 461(l)’s language, which make it nearly impossible to tell how the rule actually works in a number of situations. After describing the basic mechanics of section 461(l), this Article examines in detail the most significant interpretive uncertainties that plague the provision. Next, the Article explains why section 461(l) is bad public policy. Ultimately, the Article argues that section 461(l) should be repealed as soon as possible—but it also recognizes that an immediate repeal of the provision may be politically unlikely. Thus, in the meantime, the Article suggests specific interpretations that would resolve section 461(l)’s ambiguities and apply the excess-business-loss limitation as narrowly as possible. Adopting the interpretations proposed herein would not be enough to solve all of the problems inherent in section 461(l). Only a complete repeal could do that. But adopting the narrowest reasonable construction of the provision will at least limit the harm that the misguided new rule can do for so long as it remains in effect. \u0000 \u0000©2019. Published in The Tax Lawyer, Vol. 73, No. 1, Fall 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright h","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133236106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Eric Watson and the Cullen Group Case","authors":"M. Littlewood","doi":"10.2139/ssrn.3363385","DOIUrl":"https://doi.org/10.2139/ssrn.3363385","url":null,"abstract":"According to the Commissioner of Inland Revenue, the aim of the tax avoidance scheme in Cullen Group Ltd v Commissioner of Inland Revenue [2019] NZHC 404 was to reduce the taxpayer company’s liability to tax by $51.5 million. She assessed it to tax on that basis; and Palmer J, in the High Court at Auckland, upheld the assessment. The Commissioner is to be congratulated on her victory, and one hesitates to criticise a litigation strategy that has proved successful. The aim of this brief article, however, is to suggest that the aim of the scheme was actually to reduce the taxpayer’s liability to tax not by $51.5 million but by about $103 million; and that she should have assessed it to tax on that basis. It is perhaps too late for the Commissioner to advance in this case the argument that leads to this conclusion; but the issue is worth addressing because it has arisen in other cases in the past, it will almost certainly arise again in the future, and there is every reason to suppose that significant public revenues are consequently at risk.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121427864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cloudy with a Chance of Taxation","authors":"Rifat Azam, Orly Mazur","doi":"10.5744/FTR.2019.1003","DOIUrl":"https://doi.org/10.5744/FTR.2019.1003","url":null,"abstract":"The growth of the digital economy, and, in particular, cloud computing, has put a significant strain on sales taxation and other consumption tax systems. The borderless, anonymous, and digital nature of cloud computing raises questions about the paradigm used to determine the character of the transaction and the location where consumption, and therefore, taxation occurs. From an American perspective, the effective resolution of these issues continues to grow in importance in light of the recent U.S. Supreme Court decision in South Dakota v. Wayfair and the growing number of U.S. businesses transacting overseas in jurisdictions that impose value-added taxes (VATs). \u0000 \u0000The cloud magnifies difficulties with VAT compliance and enforcement, as businesses increasingly are subject to VAT laws in multiple jurisdictions. Tax authorities therefore have to collect from remote vendors who have numerous opportunities for VAT avoidance and evasion. The outcome of these challenges is unfair competition, a burden on international trade, and a huge gap in VAT revenues. \u0000 \u0000In this important article, we closely analyze these cutting-edge challenges and contribute to the debate on how to tax the digital economy. We argue that while the approaches taken by both the Organisation for Economic Co-operation and Development, of which the United States is a member, and the European Union introduce some noteworthy improvements to the current system, more substantial measures are necessary. Thus, we propose a range of fundamental changes that include improving the existing registration-based VAT system through the enhanced use of new technologies, replacing the current system with a blockchain real-time basis VAT system, and shifting the VAT collection burden from suppliers to payment intermediaries. As the digital transformation of the economy accelerates, each of these changes will help adapt consumption taxation to the modern realities of our digital era.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121633960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Brief of Tax Law Professors as Amici Curiae in Support of the Department of Revenue of the State of Colorado in Department of Revenue of the State of Colorado v. Oracle Corporation & Subsidiaries","authors":"H. Holderness, Darien Shanske, D. Gamage","doi":"10.2139/ssrn.3244653","DOIUrl":"https://doi.org/10.2139/ssrn.3244653","url":null,"abstract":"Amici write to address specific matters of tax policy and history raised by this case. In particular, amici address 1) the history and justification for water’s edge combined reporting (the “water’s edge method”) and 2) the history and justification for the remedial provisions that are uniformly part of state corporate income taxes. As to the first issue, amici emphasize that the water’s edge method represents a deviation from sound tax policy arrived at as a political compromise between states, the federal government, and foreign entities. As such, the method should reflect the terms of that compromise and not be expanded to exclude a U.S.-based entity with no foreign activities — such as the subsidiary at issue in this case — from its unitary business’ combined reporting group. As to the second issue, amici write to explain that state remedial provisions, as a matter of policy, exist to ensure that deviations from sound tax policy required to make a tax system administrable are not permitted to significantly harm the state tax base. In this case, the taxpayer relies on a technical reading of Colorado’s tax laws to exclude a domestic member of its unitary business from its Colorado combined group. That reading, if correct, would visit substantial harm on the Colorado corporate income tax base, making this case a strong candidate for application of the state’s remedial provisions.","PeriodicalId":225629,"journal":{"name":"Tax Law: Practitioner Series eJournal","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115730184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}