Virginia Tax Review

Browse past and current articles from this publication.

Taxing the consumption of capital gains.
This piece traces the history of the capital gain concept, and then the policy arguments for a lower rate on capital gains, to argue for an express requirement that the lower rate for capital gains . . .

On discounted partnership interests and adequate consideration.
TABLE OF CONTENTS 1. INTRODUCTION 533 A. Background on Application of Section 2036 in the 537 Family Limited Partnership Context . . .

Taxing the financial income of multinational enterprises by employing a hybrid formulary and arm's length allocation method.
TABLE OF CONTENTS I INTRODUCTION 690 II. THE ISSUE IN CONTEXT: WHY IS FORMULARY ALLOCATION 626 OF MNES' FINANCIAL INCOME DESIRABLE A. H . . .

"Sit down and count the cost": a framework for constitutionally enforcing the 501(c)(3) campaign intervention ban.
ABSTRACT Section 501 (c)(3) of the Internal Revenue Code (Code) prohibits charities from intervening in a political campaign for or against a candidate for public office. The Internal Revenue Serv . . .

Real taxation of virtual commerce.
In virtual worlds, people participate in fantasy adventures or socialize in visually immersive online environments. Popular examples include World of Warcraft, Second Life, Entropia Universe, and Ul . . .

Comment on Yin, reforming the taxation of foreign direct investment by U.S. taxpayers.
In this excellent article, George Yin addresses an important proposal by the President's Advisory Panel on Federal Tax Reform. The Advisory Panel proposed that the United States should permanently s . . .

A blueprint for tax reform and health reform.
TABLE OF CONTENTS I. INTRODUCTION 288 II. ACTION-FORCING Events 290 A Expiration of Bush Tax Cuts . . .

Comment on Leonard E. Burman, "a blueprint for tax reform and health reform".(response to article by Leonard E. Burman in this i
TABLE OF CONTENTS I. THE NEED FOR REFORM 326 A. The No-Reform Path: Deficits and Higher Marginal Tax 326 Rates B. Long-Term Fiscal Realities . . .

Is the corporate tax system "broken"?
TABLE OF CONTENTS I. INTRODUCTION 341 II. DECLINE OF THE CORPORATE TAX 343 A. Long-Term Decline 343 . . .

The empty promise of estate tax repeal.
TABLE OF CONTENTS I INTRODUCTION 369 II RHETORIC OF REPEAL 371 III Politics of Repeal 373 IV Between Repeal and Reform 381 V Conclusion 388 . . .

Transfer tax reform after EGTRRA-2001: reconstruction or further deconstruction?(Economic Growth and Tax Relief Reconciliation A
TABLE OF CONTENTS I. INTRODUCTION A. The Estate Planners 392 B. The Agency 394 C. The Taxpayers . . .

The corporation as administrative agency: tax expenditures and institutional design.
Tax expenditure analysis asserts that an income tax system is a poor vehicle for implementing non-tax goals. The traditional analysis argues that government subsidies now available through tax deduc . . .

Rethinking tax nexus and apportionment: voice, exit, and the dormant commerce clause.
TABLE OF CONTENTS I. INTRODUCTION 2 II. THE NEXUS CASE LAW 6 III. THE A . . .

Value in the eye of the beholder: the valuation of intangibles for transfer pricing purposes.
TABLE OF CONTENTS I. INTRODUCTION 81 II. INTANGIBLES ARE DIFFERENT AND IMPORTANT 85 A. Why . . .

The quest to tax financial income in a global economy: emerging to an allocation phase.
TABLE OF CONTENTS I. INTRODUCTION 166 II. THE ISSUE IN CONTEXT 168 A. The Basic Setting of the II . . .

Time to start over on deferred compensation.
TABLE OF CONTENTS I. A BAD BEGINNING 224 II. A TURN FOR THE WORSE 227 III. A FRESH START 233 A law school dean once asked me to suggest a restaurant for a dinner meeting. I na . . .

Should tax informants be paid? The law and economics of a government monopsony.
More than 140 years ago, the United States Government began to solicit information about violations of federal tax law. Currently, the Internal Revenue Service (Service) runs two reward programs for . . .

Turning slogans into tax policy.
TABLE OF CONTENTS I. INTRODUCTION 747 II. ESTATE TAX REPEAL 749 A. The Economic Case Against the Estate Tax 750 B. . . .

Risk, return, and objective economic substance.
TABLE OF CONTENTS I. INTRODUCTION 784 II. OBJECTIVE ECONOMIC SUBSTANCE 786 III. PRE-TAX PROFIT 793 . . .

Building a better GAAR.(general anti-avoidance rule)
TABLE OF CONTENTS I. INTRODUCTION 835 II. CONEQUENTIAL ATTRIBUTES OF TAX-AVOIDANCE BEHAVIOR AND A 842 TAXONOMY REFLECTING THE DIF . . .

Options as disguised financings: the demise of an urban tax legend.
TABLE OF CONTENTS I INTRODUCTION 908 II. THE FINANCING RATIONALE 911 III. DOUBTS ABOUT THE FINANCING RATIONALE . . .

Predicting the taxation of prediction markets.
TABLE OF CONTENTS I. INTRODUCTION 954 II. BACKGROUND OF PREDICTION MARKETS 956 III. CURRENT TAXATION OF PREDICTION MARKETS . . .

Principles of efficient tax law: apocrypha.
In this article, I examine guidelines that legal scholars have suggested for evaluating tax law in terms of economic efficiency. A common theme is that the efficiency of the tax treatment of a trans . . .

Optimal tax compliance and penalties when the law is uncertain.
This article examines the optimal level of tax compliance and the optimal penalty for noncompliance in circumstances in which the substance of the tax law is uncertain--that is, when the precise app . . .

The netting of costs against income receipts (including damage recoveries) produced by such costs, without barring Congress from
I. INTRODUCTION This article principally argues that, under the federal income tax, costs of obtaining specific sums of money should be capitalized (as opposed to being treated as expenses), just . . .

Homage to information returns.
I. INTRODUCTION One of the most important administrative features of the nation's tax system involves the issuance of information returns (such as Form W-2s and Form 1099s). Most studies indicate . . .

Tax information reporting and compliance in the cross-border context.
I. INTRODUCTION As in the domestic context, tax information reporting in the cross-border context serves the four-fold purpose of providing a cross-check for the Internal Revenue Service (Service) . . .

Taxation in developing countries: some recent support and challenges to the conventional view.
The general advice given by international institutions such as the International Monetary Fund (IMF) and the World Bank to developing countries over the past few decades has been to replace trade ta . . .

Rationalizing the taxation of reorganizations and other corporate acquisitions.
This article examines the taxation of human shareholders in the case of mergers and acquisitions. Currently, the relevant law is extraordinarily complex, utterly inconsistent, and in many instances . . .

Theory meets reality: the case of the double tax on material capital.
In recent years there has been increased interest in the adoption of a consumption tax as a replacement for the income tax. Typically it is suggested that this result be achieved by (1) taxing only . . .

Naked and covered in Monte Carlo: a reappraisal of option taxation.
The market for equity options and related derivatives is staggering, covering trillions of dollars worth of assets. As a result, the taxation of these instruments is inherently important. Moreover, . . .

International tax neutrality: reconsiderations.
Tax policy in general and international income tax policy in particular has long been a subject of discussion and argument by tax philosophers, economists, and lawyers. Theories have often been intr . . .

Tax lawyers are people too.
I. INTRODUCTION Victor Fleischer understands that to increase compliance with tax law, we cannot simply look to a mix of legal penalties and enforcement. He understands, too, that the role of norm . . .

Options backdating, tax shelters, and corporate culture.
This Essay examines the problem of tax noncompliance through the prism of the options backdating scandal. The noncompliance of backdating was obvious, at least to tax lawyers. Backdating wasn't a so . . .

Questioning the wisdom of patent protection for tax planning.
I. INTRODUCTION The topic of federal patent protection for tax planning strategies has received considerable attention of late, (1) much of it from a tax bar whose overall incredulity concerning t . . .

Patents, tax shelters, and the firm.
I. INTRODUCTION The United States patent statute offers exclusive rights in any new and useful "process, machine, manufacture, composition of matter" or new and useful improvements on existing pro . . .

Disrupting the market for tax planning.(response to article by Philip Curry, Claire Hill, and Francesco Parisi in this issue, p.
I. INTRODUCTION It is a pleasure to comment on Philip Curry, Claire Hill, and Francesco Parisi's article (1) on creating market failures for tax planning. It is rare that I get to comment on an ar . . .

Creating failures in the market for tax planning.
I. INTRODUCTION Although most people recognize the necessity of taxes, few people like to pay them. Governments expend costs to collect taxes; people expend resources to avoid paying them, engagin . . .

Of lenity, Chevron, and KPMG.
I. INTRODUCTION Despite a mixed track record in challenging tax shelters in civil enforcement actions, the federal government has started prosecuting tax shelter cases criminally. (1) One of the t . . .

Tax shelters and the Code: navigating between text and intent.
I. INTRODUCTION Tax shelters raise difficult problems of statutory interpretation. In her interesting article, Of Lenity, Chevron, and KPMG, (1) Kristin Hickman explores one of them: the recent te . . .

Tax shelters, Dutch books, and the fundamental theorem of asset pricing.
Because the tax law makes many distinctions not based on fundamental economic differences, taxpayers can exploit these inconsistencies to create opportunities for tax arbitrage. This article argues . . .

Compaq redux: implicit taxes and the question of pre-tax profit.
I. INTRODUCTION Until recently, (1) more ink was probably spilled over the cross-border, dividend-stripping transactions in Compaq v. Commissioner (2) and IES Industries v. Commissioner (3) than o . . .

In defense of requiring back-flips.(response to article by Leo Katz in this issue, p. 799)
In his article, In Defense of Tax Shelters, (1) Leo Katz lives up to his usual standard of being iconoclastic, provocative, illuminating, and fun to read. The article challenges the conventional wis . . .

In defense of tax shelters.
I. INTRODUCTION Tax shelters do not have many defenders. The lawyers who have to defend them on behalf of a client tend to simply appeal to the court's duty not to engage in law-making. Often that . . .

State tax shelters and U.S. fiscal federalism.
I. INTRODUCTION In his article, State Tax Shelters and the Competition for Capital, (1) Professor Joseph Bankman offers an insightful perspective on how the tax shelter game has played out at the . . .

State tax shelters and state taxation of capital.
I. INTRODUCTION State income tax is a most demanding area of practice. It requires knowledge of federal income tax, constitutional issues that play no role in federal income tax, and the substitut . . .

Public tax dollars for private suburban development: a first report on a national phenomenon.
I. INTRODUCTION A. The Riddle of "Natomas Grove" The year is 2003 and the city council of the fictional city of Natomas Grove is struggling with another year of the California budget crisis. In . . .

Sourcing the "unsourceable": the cost sharing regulations and the sourcing of affiliated intangible-related transactions.
I. INTRODUCTION A. Forward A specter is haunting the international tax regime of the United States--the specter of territorialism. For years, tax policymakers and scholars have been divided over . . .

Harnessing the costs of international tax arbitrage.
Despite attention from governments, international organizations, and academics, the issue of international tax arbitrage, or private tax benefits arising from the conflict of tax laws between countr . . .

Outlawing pension-funding shortfalls.
Before ERISA, employees faced a large risk that their employers would default or renege on pension obligations. By creating a federal guarantor of pensions (the PBGC), ERISA has greatly reduced this . . .