Can You Prepay 2018 Property Tax in 2017?

By Victor Thuronyi

This question gets more complex by the day.  On Dec. 27, the IRS issued Announcement 2017-210, which can be found on their website.  https://www.irs.gov/newsroom/irs-advisory-prepaid-real-property-taxes-may-be-deductible-in-2017-if-assessed-and-paid-in-2017  My first reaction to this was, good for the IRS for doing their job to provide guidance to taxpayers.  But there is a caveat.  The job of the IRS is not easy because it is subject to political constraints (the acting IRS Commissioner, David Kautter, also serves as Assistant Treasury Secretary for Tax Policy).  It is unusual for the Assistant Secretary to also serve as acting IRS Commissioner – indeed this has never happened before, at least in recent memory – and it raises questions precisely about issues like the one about the state and local deduction – does the IRS announcement reflect a nonpolitical view or is it designed to serve the political purposes of the Trump administration?).

Those who are not aficionados of IRS documents may not focus on the fact that the IRS Announcement is not a Revenue Ruling, which would carry some legal status.  An Announcement generally does not break new legal ground.  The Accouncement states: “ A prepayment of anticipated real property taxes that have not been assessed prior to 2018 are not deductible in 2017.” (this is also ungrammatical, by the way). One would expect an Announcement that states a legal conclusion to provide a citation with legal authority, but the Announcement does not do so.

Continue reading “Can You Prepay 2018 Property Tax in 2017?”

Sharing syllabi and course updates in the wake of the recent tax law changes

By Leandra Lederman

Tax professors are of course among the many people affected by the recent, significant changes to federal tax law. I have heard from several people wondering how best to adapt their courses starting in January to these changes. I think that exchanging ideas and sharing syllabi, etc., may be very helpful.

Accordingly, several of us have each agreed to serve as the point person for a particular course. The point person can set up an email list for those who express interest by email, and then use that list to exchange questions, ideas, syllabi, URLs, handouts, etc. with others teaching the same course. Of course, casebook authors may also be working on updates, and other listservs may be helpful, but these distribution lists will allow those interested to participate in topic-focused groups to exchange materials and ideas in advance of and throughout the semester.

The point people thus far are the following Surly bloggers, for the following courses:

Individual Income Tax: Jennifer Bird-Pollan (email jbirdpollan@uky.edu)

Corporate Tax: Leandra Lederman (email llederma@indiana.edu)

Partnership Tax: Phil Hackney (email phackney@lsu.edu)

 
To get on an email list, please email the applicable point person. And folks interested in serving as a point person for another course (i.e., in setting up the email list and getting it started), please post in the comments below, with the course name and your email address.

Happy new year, everyone!

Feminist Judgments: Rewritten Tax Opinions

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Tax-gift giving this holiday season just got so much easier!! Look what arrived just in time to celebrate the end of 2017! The FIRST in a series of subject-matter volumes of US Feminist Judgments is the Feminist Judgements: Rewritten Tax Opinions.

Featuring fantastic contributions by Surly Subgroup colleague Professor of Law Jennifer Bird-Pollan and dream team editors: James D. Hopkins Professor of Law Bridget J. Crawford and Buchanan, Ingersoll & Rooney Faculty Scholar, Gender, Sexuality & Women’s Studies Faculty (affiliate) and Professor of Law Anthony C. Infanti,

Commentary and rewritten tax opinions by Tax Professors and Scholars Extraordinaire Appleberry, Beale, Bird-PollanBrennen, Cain, Christensen, Cords, Cruz, Drumbl, Fellows, Gerzog, Heen, Knauer, Lahey, Lipman, Maynard, Murphy, Pratt, RobinsonRobson, Tait, Thompson, and Waterhouse Wilson.

Continue reading “Feminist Judgments: Rewritten Tax Opinions”

The Law With No Name or the “2017 Budget Reconciliation Act”

Victor Thuronyi

Legislative drafting conventions are conservative, and it is traditional for a bill to have a long title which describes the purposes of the bill in technical detail, and then to include in the first section a short title which provides a more user friendly name.  The short titles of Acts used to be fairly straightforward (e.g., the “Revenue Act of 1939”) but by the late 70s or early 80s, they tended to get cute and political, so now we have names like the “PATRIOT Act” and the “Affordable Care Act.”

The tax bill just passed by both houses of Congress introduces a new and somewhat unprecedented variation.  There is no short title.  There used to be: the “Tax Cuts and Jobs Act” (TCJA).  However, at the last minute, it was stripped out of the bill because the Senate Parliamentarian ruled that it was extraneous to the bill’s purpose of affecting revenues, which is what a reconciliation bill is limited to.  Hard to argue with that – the name of the law does not have an effect on revenues.

As a result, it would not be accurate to refer to this piece of legislation as the TCJA.  Opponents have been referring to it as the Trump Tax Scam, and likely will continue to do so.  It is probably too much to ask the media and tax advisors to refer to it that way, since that does seem overtly political.  The “2017 Budget Reconciliation Act” perhaps would work (BRA for short).  Several pieces of legislation enacted through reconciliation procedure have been called “Omnibus Budget Reconciliation Act of 19xx” so there is precedent.  So calling it a Budget Reconciliation Act is a correct generic description in the absence of an official short title.  I believe that calling it a tax reform act would also be political, since it falls far short of reform.  Budget reconciliation is perhaps as neutral as one can get.  An additional argument for this is that the bill contains not only tax provisions but also provisions on Alaska drilling, which are not tax related, but are related to budget reconciliation.

 

Are Sexual Harassment Plaintiffs’ Attorneys’ Fees Inadvertently Disallowed by the Tax Cuts Bill?

By Leandra Lederman

The Tax Cuts and Job Act’s conference bill includes section 13307, titled “DENIAL OF DEDUCTION FOR SETTLEMENTS SUBJECT TO NONDISCLOSURE AGREEMENTS PAID IN CONNECTION WITH SEXUAL HARASSMENT OR SEXUAL ABUSE.” Fellow Surly blogger Sam Brunson blogged about an earlier version of this provision, which obviously reflects the recent, widely publicized revelations of sexual harassment and sexual assault that began with the Jody Kantor & Megan Twohey exposé of Harvey Weinstein in early October and was followed by a floodgate of allegations spanning a wide range of industries. Unfortunately, this tax provision, as drafted, is less than clear and could potentially have perverse—perhaps unintended—effects.

The provision seems intended as a policy-based provision rather than much of a revenue-raiser; it was one of very few things in the conference bill scored as raising less than $50 million over the entire 2018-2027 budget window. And, in the press release accompanying the predecessor of this provision, the Settlement Tax Deductions are Over for Predators Act (the STOP Act), which was introduced by Rep. Ken Buck (R-Colo.), Rep. Buck stated, “‘When we allow companies to deduct sexual assault and sexual harassment related settlements, we’re asking the American taxpayer to subsidize hush money payments that cover-up sexual misconduct.’”

But what exactly does the provision disallow? The principal language in the conference bill (the material other than the effective date and relettering) is a new subsection added to Code section 162 that reads:

“PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—

“(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or

“(2) attorney’s fees related to such a settlement or payment.” Continue reading “Are Sexual Harassment Plaintiffs’ Attorneys’ Fees Inadvertently Disallowed by the Tax Cuts Bill?”

The Expanded Child Tax Credit Is an Imperfect Replacement for Personal Exemptions

By Sam Brunson

Picture courtesy of Pixabay. Used under a CC0 1.0 Universal license. (It’s surprisingly hard to find a picture of a family of five without copyright restrictions!)

The conference tax bill follows both the House and the Senate bills in drastically increasing the standard deduction (from current law’s $13,000 in 2018 to $24,000). At the same time, it gets rid of personal exemptions. As Stephanie Hoffer pointed out eight months ago, eliminating personal exemptions would essentially increase taxes on families of four or more people; the more children a family had, the bigger its tax increase.

To fix that problem, the bill doubles the child tax credit from $1,000 to $2,000 per child. In addition, to get Marco Rubio’s vote, the bill provides that up to $1,400 of each child tax credit is refundable.

So do the child tax credits alleviate the problem of eliminating personal exemptions? Sometimes. Continue reading “The Expanded Child Tax Credit Is an Imperfect Replacement for Personal Exemptions”

Upcoming Corrections May be More than Technical

Victor Thuronyi

In 1981, Congress passed a tax cut which, among other things, greatly accelerated deductions for investment in equipment. It soon became apparent that the 1981 Act was going to lose too much revenue.  Republicans were in charge of the Senate and the White House.  At that time, Republicans were by and large responsible, reasonable legislators.  Bob Dole was chair of the Senate Finance Committee.  The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) was enacted, undoing many of the provisions of the 1981 legislation.

While it would be unrealistic to expect Republicans today to propose something similar to TEFRA, there is no reason Democrats should not do so. Democrats might start as soon as the tax bill passes (if it does) putting together legislation to repeal many of its problematic provisions, and perhaps include other reform measures that would raise revenue and improve the equity of the tax system.  Such a piece of legislation should also include technical corrections to the Tax Cuts and Jobs Act (TCJA).  Continue reading “Upcoming Corrections May be More than Technical”

The Marriage Penalty and Head of Household Filing under the Senate Tax Bill [Updated]

Victor Thuronyi

One of the issues that has received little attention is the repeal of the marriage penalty in the Senate bill. There were no hearings on this, and nothing in the Joint Committee explanation of the Senate bill to indicate why the change is being made.

The tax bill as passed by the Senate would make a significant change to the taxation of married persons vs. single persons.  In headline terms, single people will pay more than married people as a group. This issue involves several policy goals, not all of which can be fully accommodated (the goals include neutrality on getting married, and all married couples with the same combined income pay the same tax). Under current law, these have been accommodated by a compromise. When individuals get married, there might be a marriage penalty or a marriage bonus, but the rate schedules have been adjusted to make these relatively small. Nevertheless, they are there.

The Senate bill would change this by removing the marriage penalty completely. When a couple is married, the tax consequences might be neutral (where the members of the couple have equal incomes), but there would be a marriage bonus in all other cases. The largest bonus occurs in the “traditional” marriage where there is a stay-at-home parent.

If the marriage penalty is eliminated, one implication is that the share of the overall tax burden borne by married persons as opposed to single persons will decline. In other words, singe persons will pay more tax. This is relative. Many single persons will experience a tax decrease, which will occur primarily for those who do not itemize deductions, since their standard deduction will increase. The point is that the decrease would be even greater if the marriage penalty were not being eliminated, because in effect the elimination of the marriage bonus has to be made up for by single people. As an example, two single nonitemizers with gross income of $75,000 would pay $11,889 in tax currently, or $23,778 for both, if unmarried, but 24,790 if married, so there is a marriage penalty of $1,012, or in percentage terms the unmarried individuals pay 96% of what the married couple with identical incomes pays. Under the Senate bill, this ratio is 100% for this couple.

In addition to there not being any marriage penalty, the tax disincentives for labor force participation of the second-earner spouse would not be improved by the Senate bill. In other words, there is a high marginal tax rate on the second earner. Continue reading “The Marriage Penalty and Head of Household Filing under the Senate Tax Bill [Updated]”

Potential Effects of Tax Reform on Work (Guest Posts @ On Labor Blog)

Shu-Yi Oei

Diane Ring and I were invited to write a guest post for the On Labor blog, to explain the potential effects of tax reform on work arrangements for a labor law audience. There was some interest in tax reform among labor law experts in light of the New York Times article that ran on December 9, titled “Tax Plans May Give Your Co-Worker a Better Deal Than You.”

We wrote a pair of posts, describing the potential effects of tax reform on work arrangements (including decisions to form a passthrough or to classify oneself as an independent contractor).

Something that struck us in our attempt to translate the policy issues for a non-tax legal audience was the sheer complexity of some of the new provisions in the new proposed provisions and the difficulty of discussing them with integrity–maintaining nuance, not oversimplifying or being hyperbolic, but still being understandable. As others have noted, the creation of the proposed tax legislation and the subsequent commentary on it have both happened very quickly. Our attempt to explain clearly the proposed legislative provisions to a non-tax legal audience and to discuss the policy issues at stake really highlighted for us the complexity of these proposed laws, the policy pitfalls, and the perils of operating at high speed.

In any case, here are the posts:

Work-Related Distortions in the Tax Reform Bills: Understanding the New Proposed Provisions (Part 1 of 2)

…The goal of this two-part blog post is to summarize for a labor law audience how the proposed tax legislation creates these outcomes and to highlight the important policy issues that observers and commentators might be concerned about. This Part 1 focuses on the statutory provisions, and Part 2 will discuss the key policy conversations that are taking place….

Work-Related Distortions in the Proposed Tax Bills: Understanding the Policy Conversations (Part 2 of 2)

This post follows up on our prior post, which focused on the complex provisions of the proposed Senate tax bill. This post discusses some of the key concerns that have been expressed about the new tax bill. (Again, we focus here on the Senate version of the proposed legislation. The specifics of the analysis may change once we get the Conference version, though the broader policy and design questions are likely to persist.)

 

Opening Volleys in South Dakota v. Wayfair

By Adam Thimmesch

Much of the tax world is currently focused on federal tax reform, and rightfully so. The speed with which the Republicans are pushing a bill through Congress has required an intense burst of attention, and academics evaluating the bill have already noted and written on number of glitches and loopholes in the current bills. (Full paper here.) While this is all occurring, though, a significant case is being pitched to the U.S. Supreme Court—South Dakota v. Wayfair. That case involves the Court’s physical-presence rule and the ongoing fight between states and retailers regarding the collection of use tax on online sales. This could be one of the most significant state tax cases heard by the Supreme Court in decades. Unfortunately, it is fighting for press against federal tax reform. Bad timing.

I’ve blogged about this dispute before, so I don’t want to rehash all of the history of Quill and the issues related to collecting use taxes on online commerce. However, both the Petition for Writ of Certiorari and the Respondents’ Brief in Opposition have now been filed (the Petition was filed by the State of South Dakota on October 2nd and the Respondents’ Brief in Opposition was filed last Thursday), so I thought that it might be helpful to summarize the major arguments made by both sides in their filings and to foreshadow some of the arguments to come. (Warning, this gets long even as a summary…)

Continue reading “Opening Volleys in South Dakota v. Wayfair”