How the Espinoza Tax Credits Work

By Sam Brunson

On Tuesday the Supreme Court issued its opinion in Espinoza, holding that Montana couldn’t prohibit “student scholarship organizations” from making tuition payments to religiously-affiliated private schools. I wrote about the decision over on the Nonprofit Law Prof Blog.

After writing the post, I saw this entry in a SCOTUSblog symposium on the Espinoza decision. And, like the authors of that piece, I found the Supreme Court’s decision unsurprising (for reasons that I mention on the other blog). But one part of their analysis jumped out at me as reflecting a critical misunderstanding of the way Montana’s tax credit scheme worked.

Specifically, the authors wrote:

The secular instruction in these schools means that the state gets full secular value for its money. There are complications in putting a dollar amount on this secular value. It might be the schools’ full cost, given that they satisfy compulsory-education requirements. Or some of the cost might be attributed to teaching religion. But one thing we know: the secular value is far more than zero. A $2,250 tuition voucher (the amount involved in the court’s 2002 decision in Zelman v. Simmons-Harris) can easily be allocated entirely to secular value. All the more so in Espinoza, where the tax credit was capped at $150.

(Emphasis mine.)

This paragraph isn’t critical to the blog post; it’s not mentioned in the majority’s analysis. And yet I’m afraid it may have been in the back of the mind of the Justices. Because, after all, what’s $150 out of private school tuition? Continue reading “How the Espinoza Tax Credits Work”

More on Altera v. Commissioner

By: Leandra Lederman

Susan Morse and Stephen Shay have blogged on Procedurally Taxing on both May 22 and June 11 on Altera’s efforts to have the U.S. Supreme Court grant certiorari in Altera v. Commissioner. Altera is a closely followed case involving an administrative law challenge to the validity of a Treasury regulation, so I wanted to flag those blog posts for Surly Subgroup readers.

Recall that in Altera, the Court of Appeals for the Ninth Circuit upheld a cost-sharing regulation under IRC § 482, reversing the Tax Court’s unanimous decision invalidating the regulation as arbitrary and capricious. The Ninth Circuit ruled 2-1 for the government in both its original opinion, which was withdrawn due to the death of one of the judges on the panel, and again in a revised opinion. The Ninth Circuit also denied rehearing en banc, a victory for the IRS’s rulemaking process. (Full disclosure: in addition to joining in two earlier amicus briefs in favor of the Commissioner, which Susie and Steve spearheaded, I co-authored with them and Clint Wallace a 2019 amicus Brief in Opposition to the Petition for Rehearing En Banc.)

In February, Altera petitioned for certiorari, stating the following questions presented: Continue reading “More on Altera v. Commissioner”

Announcing the 2020 Indiana/Leeds Summer Tax Workshop Series!

Indiana Leeds PR image to useBy: Leandra Lederman

As I posted previously, this summer, Dr. Leopoldo Parada from the University of  Leeds School of Law and I (with the support of the Indiana University Maurer School of Law) will co-host the new Indiana/Leeds Summer Tax Workshop Series. It will meet online via Zoom on Thursdays from 10:30am-noon Eastern time (3:30-5pm British Summer Time). If you are interested in cutting-edge tax issues, we hope you will consider attending!

We received many terrific submissions in response to the Call for Papers. As stated there, we prioritized tax topics that would be of interest to scholars in multiple countries. We are very fortunate to have Professor Ruth Mason from the University of Virginia kicking off what promises to be an outstanding series! The following is the full list of speakers and the papers they’ll be presenting: Continue reading “Announcing the 2020 Indiana/Leeds Summer Tax Workshop Series!”

Taking Control of the State Tax Base During the Pandemic

COVID-19 has impacted society in nearly every dimension, and state and local governments have been hit especially hard. Those governments are simply not equipped to deal with major revenue shocks like those that accompany a global pandemic. In that vein, a group of scholars has joined forces to create Project SAFE (State Actions in Fiscal Emergencies), which is focused on providing research-backed policy recommendations for states. Among the project’s areas of focus is how states can help themselves by modifying their own taxing and spending programs and priorities.

One of the features of state taxation that I have been looking at quite a bit in recent years is states’ conformity practices—states using the federal tax code for purposes of defining their own tax bases. Continue reading “Taking Control of the State Tax Base During the Pandemic”

Call for Papers for the Indiana/Leeds Summer Tax Workshop Series

By: Leandra LedermanTwitter Second Proof 2.5

This summer, the Indiana University Maurer School of Law and the University of  Leeds School of Law will run a new Summer Tax Workshop Series. Dr. Leopoldo Parada from U. Leeds and I will host it. It will meet online via Zoom on Thursdays from 10:30am-noon Eastern time (3:30-5pm British Summer Time), starting May 21, 2020.

The Call for Papers opens today and will close on May 10, 2020 at midnight British Summer Time (7pm Eastern Daylight Time). If you are interested in presenting in the Workshop, please send the following before then to llederma@indiana.edu and L.Parada@leeds.ac.uk:

  1. Your name, title, and affiliation.
  2. The paper title and an Abstract of no more than 1,000 words.
  3. Whether or not you already have a draft of the paper. (We expect to circulate a draft of each paper—at least 10 pages—a week in advance of each talk.)
  4. Whether or not the paper has been accepted for publication.
  5. A list of any Thursdays between May 28 and August 6 that you would not be available to present, or a statement that any Thursday in that date range would work for you.

Continue reading “Call for Papers for the Indiana/Leeds Summer Tax Workshop Series”

Updated Working Paper on Pandemic Regulation Includes Analysis of the CARES Act, H.R. 748

My co-authors and I (Hiba Hafiz, Shu-Yi Oei, and Natalya Shnitser) have just posted an updated version of our Working Paper, Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis. The Working Paper is revised and updated to incorporate the provisions of H.R. 748 (the “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES” Act) enacted into law on March 27, 2020. In addition, the revised draft considers recent action by the Federal Reserve, the Department of Labor, and other agencies all through the analytical framework we offer for evaluating these initiatives.

Virtual Tax Policy Colloquia

Orly Mazur--edited
Prof. Mazur

By: Leandra Lederman

The Tax Policy Colloquium at Indiana University Maurer School of Law, which I’ve been blogging about, ran in person in Bloomington until our Spring Break. The fourth talk of the semester was given by Prof. Orly Mazur of SMU Dedman School of Law on March 5, 2020. She presented her interesting law-and-technology paper titled “Can Blockchain Revolutionize Tax Compliance?” (In general, she argued that it can’t: blockchain is unlikely to dramatically change tax enforcement by, for example, replacing third-party information reporting.)

The subsequent IU Tax Policy Colloquium talk, by Prof. Rita de la Feria of the University of Leeds School of Law, was on March 27. She presented a paper, coauthored with Michael Walpole of UNSW, titled “The Impact of Public Perceptions on VAT Rates Policy,” which is part of a larger project proposing a progressive VAT. The paper argues that, although having a single consumption tax rate that is broadly applied is most equitable, there typically are numerous exemptions and/or lower rates, for political economy reasons.

Rita de la Feria
Prof. de la Feria

With the move to online classes due to the pandemic, this talk occurred via Zoom. It was unfortunate that, due to the pandemic, we were not able to host Rita in Bloomington. However, the silver lining was that I was able to invite tax experts and other faculty from all over the world to attend. Rita and I also both publicized the talk on social media. As a result, several academics and other tax experts either asked to attend, or, if they saw the notice too late, asked if there is a video they could watch, which there is. In addition to me, Rita, and the students in the class, there were 22 attendees, which produced a terrific discussion. The students later told me how wonderful it was to have so many international tax experts asking questions and making comments. Continue reading “Virtual Tax Policy Colloquia”

Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis

By Diane Ring

As is apparent to the entire nation, the United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. Yet the policy responses being developed have limited time for assessment and evaluation—despite their likely dramatic impacts. Three of my colleagues (Hiba Hafiz, Shu-Yi Oei, and Natalya Shnister) and I are currently working on a project that analyzes and tracks these emerging responses. Having spent the past several years working together as part of Boston College Law School’s Regulation and Markets Workshop, it made sense to combine our efforts and expertise to try and contribute to effective policy guidance at this critical time.

Our new Working Paper (“Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis”) discusses the ramifications of proposed and legislated policy and other actions and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire.

This Working Paper—which will be continually updated to reflect current developments—will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the “Families First Coronavirus Responses Act”) passed by the house on March 14, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.

 

IU Tax Policy Colloquium: Liscow, “Equality, Taxation, and Law and Economics In the 21st Century”

IMG_0948By: Leandra Lederman

On February 20, 2020, the Indiana University Maurer School of Law welcomed our third Tax Policy Colloquium guest of the year: Prof. Zachary Liscow from Yale Law School. Zach presented his draft article titled “Equality, Taxation, and Law and Economics In the 21st Century.”

As its title suggests, the article takes on income inequality. The article argues that the standard approach of redistributing only through the tax system and hinging non-tax policies on efficiency is misguided. It makes the case that (1) people want more equality than we currently have; (2) people do not think of tax and transfers together and fungibly trade off between types of redistribution but instead have (conceptually) “separate public accounts” for taxation and other government activities; (3) in part, that is because people have an idea of “desert” that is linked to cash income, resulting in resistance to heavily redistributionist taxation; and thus (4) rather than striving for “optimal” taxation and efficient legal rules, the government should tilt non-tax policies (such as transportation policy) to increase their redistributive aspects. As the abstract states, this argument “turns standard economics prescriptions on their heads.”

The article is fascinating and a compelling read. The idea that people think separately about taxes and transfers seems very plausible. I had not thought before about the idea of desert applying to pre-tax income but it is quite persuasive. It adds a further layer to the argument I made in a 2004 article titled “The Entrepreneurship Effect.” That article argued that the Internal Revenue Code systematically favors business deductions over investment deductions; the difference between them is that the former require labor and the latter do not; and this reflects societal favoritism for entrepreneurship. The idea that “desert” particularly inheres in labor income adds a layer in that it helps source the societal value put on labor income and entrepreneurship. Continue reading “IU Tax Policy Colloquium: Liscow, “Equality, Taxation, and Law and Economics In the 21st Century””

IU Tax Policy Colloquium: Haslehner, “International Tax Competition—The Good, the Bad, and the Ugly”

By: Leandra LedermanIMG_0665a

On February 6, 2020, the Indiana University Maurer School of Law welcomed our second Tax Policy Colloquium guest of the year: Prof. Werner Haslehner from the University of Luxembourg’s Department of Law, who is currently a Global Research Fellow and adjunct professor at NYU Law School. Werner presented his draft essay titled “International Tax Competition—the Good, the Bad, and the Ugly.”

States of course compete for tax base. Werner’s essay explains that “States’ general freedom to act (which we may call sovereignty) and taxpayer’s freedom to choose (which we may call liberty) – although neither is without limits – inescapably lead to competitive pressures and reactions.” (p.4) And some of this competition has been labelled as “harmful” by the OECD, the European Commission, and others. Yet, the essay points out, there is no accepted definition of the phrase “harmful tax competition.” The essay briefly reviews the literature and points out differences in approach to defining this concept. This part of the essay draws in part on Lily Faulhaber’s compelling article, The Trouble with Tax Competition: From Practice to Theory, 71 Tax L. Rev. 311 (2018), which pointed out the lack of definitional consensus and offered a typology of tax competition.

Werner’s essay further argues that, as commonly understood, there is no economic standard that supports a distinction between “harmful” and other types of tax competition. The essay thus proposes to replace the phrase “harmful tax competition” with “unfair tax competition.” (p.13) The essay specifically proposes “to refer as a basis for such a constraint to one of the most salient principles of moral philosophy: Immanuel Kant’s categorical imperative. According to this norm’s first formulation, one is to ‘act only in accordance with that maxim through which one can at the same time will that it become a universal law’.” (p.16). The essay provides two examples of behaviors that would be considered “unfair” under this standard: (1) ring-fencing (the provision of a tax benefit only to foreigners, not domestic taxpayers) and (2) secrecy (which, in response to a question I posed, Werner clarified refers to “secrecy as a service”—assisting foreign taxpayers in tax evasion). Continue reading “IU Tax Policy Colloquium: Haslehner, “International Tax Competition—The Good, the Bad, and the Ugly””

IU Tax Policy Colloquium: Layser, “When, Where, And How To Design Community-Oriented Place-Based Tax Incentives”

By: Leandra LedermanIMG_0435 (002)c

On January 23, the Indiana University Maurer School of Law welcomed our first Tax Policy Colloquium guest of the year: Prof. Michelle Layser from the University of Illinois College of Law. She presented her draft paper on the design of place-based tax incentives, then called “When, Where, And How To Design Community-Oriented Place-Based Tax Incentives,” and since retitled “How Place-Based Tax Incentives Can Reduce Geographic Inequality.” An updated draft is available on SSRN.

Shelly explained that this draft is the second paper in a multi-part project she is conducting on place-based tax incentives. Last year, she published the first piece in the series, “A Typology of Place-Based Investment Tax Incentives,” 25 Wash. & Lee J. Civ. Rights & Soc. Just. 403 (2019). Place-based tax incentives are geography-based incentives that generally are intended to help low-income areas by fostering investment in those areas. The 2019 article distinguished among place-based tax incentives on two dimensions: direct and indirect tax subsidies and spatially-oriented versus community-oriented incentives. “Direct tax subsidies provide tax breaks directly to businesses that invest in low-income communities.” (p. 415) Indirect tax subsidies are instead provided to investors in such business (pp. 417-18). She cites as examples the New Markets Tax Credit (NMTC) of IRC § 45D and the Opportunity Zones (OZ) provisions in IRC § 1400Z-1 et seq. (The OZ provisions are the most oddly numbered Internal Revenue Code sections I’ve ever seen!). Spatially-oriented tax incentives focus on specific geographically-defined Continue reading “IU Tax Policy Colloquium: Layser, “When, Where, And How To Design Community-Oriented Place-Based Tax Incentives””

The IU Maurer Law School’s 2020 Tax Policy Colloquium

By Leandra LedermanCaptureTaxColloqFullPOsterJPG

Indiana University Maurer School of Law’s Tax Policy Colloquium will reconvene this Thursday, January 23, 2020. Michelle Layser from the University of Illinois College of Law will start us off, presenting her new paper titled “When, Where, and How to Design Community Oriented Place-Based Tax Incentives.” It’s a really interesting study of tax-expenditure design in the context of geography-based tax incentives. Prof. Layser’s paper includes original “heat maps” of Chicago showing areas with high poverty levels, areas with high numbers of low-wage jobs, areas that are eligible for the New Markets Tax Credit, and areas designated as Opportunity Zones. The talk promises to be really interesting!

The full schedule of talks is listed below, after the jump, and is also shown in the poster pictured above. Overall, this year’s line-up of speakers is more international than usual, following my wonderful Fulbright research stay at the University of Luxembourg in Spring 2019.

As I did the last time I ran the Colloquium, I’m planning to blog each workshop afterwards, with permission of the speakers. If you will be in Bloomington and are interested in attending one or more workshops, just let me know and I can add you to the email list or send you a particular paper once I receive it. (Most of the paper drafts will not be publicly available.) Continue reading “The IU Maurer Law School’s 2020 Tax Policy Colloquium”

Call for Papers: “Social Equality in the ‘Sharing Economy?’” Symposium (Indiana University, Bloomington)

iub700The Indiana University (IU) Maurer Law School’s Indiana Journal of Law and Social Equality, in collaboration with IU’s Kelley School of Business and IU’s Ostrom Workshop, is hosting a symposium on the “gig” or “sharing” economy on February 13 and 14, 2020 at the Maurer School of Law in Bloomington, Indiana. The call for participation can be found here. The deadline for full consideration is November 27, 2019 at 5pm.


The Indiana Journal of Law and Social Equality serves as an academic forum for scholars, practitioners, policymakers, and students to improve race and gender relations, foster new research in and across the disciplines, and provide an intellectual foundation for the pursuit of social justice.

The Kelley School of Business is consistently named among the top business schools in the world and is home to the Department of Business Law and Ethics, one of the largest and most well-respected departments of its kind. The Department continues Kelley’s strong business law tradition and advances research in a variety of business law fields, especially privacy, big data, and cybersecurity.

The Ostrom Workshop was founded at Indiana University in 1973 by Nobel laureate Elinor Ostrom and her husband, Vincent. Today, it carries forward their legacy by seeking and sharing solutions to the world’s most pressing problems involving communal and contested resources—from clean water to secure cyberspace.

Taxing Student Athletes: An Explainer

By Sam Brunson

About a month ago, California Governor Newsom signed the Fair Pay to Play Act, which allowed California college athletes to be paid for the use of their image, name, and likeness. Other states, including Illinois, have proposed similar legislation. And today, the NCAA caved; though its concession is not entirely clear, it looks like the NCAA has paved the way to allow NCAA athletes to make money off of their image.

For some reason, this has provoked backlash by Senator Burr of North Carolina. On Twitter, he announced that he plans on introducing legislation that would tax college athletes who accepted payment for the use of their image, etc., on their scholarships. Continue reading “Taxing Student Athletes: An Explainer”

The IRS’s new Tax Gap Map

TaxGapMap2019Yesterday, the IRS released new federal tax gap estimates, including a new Tax Gap Map. My first substantive post on this blog, back in May 2016 (linked here), was on the IRS’s tax gap study for the 2008-2010 tax years. The new report covers averages from tax years 2011-2013, i.e., picking up where the 2016 report left off.

The new estimates show an average estimated gross tax gap of $441 billion (compared to $458 billion on average for 2008-2010) and an estimated overall “voluntary compliance rate” of 83.6% of tax liability. The new Tax Gap Map shows that, according to the IRS’s estimates, the single largest contributor to the federal tax gap, in dollars, remains underreporting by individuals of business income, at an average of $110 billion per year.

The new report is not only careful to state that methodology changes from the previous tax gap study influence the gross and net tax gap figures, it redoes the 2008-2010 voluntary compliance rate calculation with its revised methodology, to provide an apples-to-apples comparison. The IRS reports that, under the current methodology, the voluntary compliance rate for those years would be 83.8% instead of the 81.7% reported—very similar to the 83.6% voluntary compliance rate the IRS estimates for 2011-2013.

One thing that’s obvious in reviewing the new report is that the format of the new Tax Gap Map is different. (Compare the 2019 version with the 2016 version.) One difference from the previous Tax Gap Map is that the new release does not color code or label “Actual Amounts,” “Updated Estimates,” and “No Estimates Available.” The new version instead adds a visual illustration of the relative sizes of estimated total tax liabilities, tax collections and tax gap amounts. The color coding in the “map” reflects those categories. Another difference is that the new version does not include excise taxes in the map. The previous Tax Gap Map included them, although the dollar amount of the underpayment gap for excise taxes was small and the IRS did not have estimates for nonfiling or underreporting of those taxes. Continue reading “The IRS’s new Tax Gap Map”