The One-Hundredth Anniversary of the Federal Estate Tax: It’s Time to Renew Our Vows

The approaching one-hundredth anniversary of the federal estate tax is an opportune time to revisit its historical origins, its role in our government and society through the years, and its current and future place in our fiscal firmament. This Article argues that the reasons behind the enactment of the estate tax in 1916—to raise revenue during a time of war, enhance the progressivity of the tax system, and curb concentrations of wealth—are even more compelling in 2016. As a result, this Article argues that revitalization of the estate tax should be a central tax reform plank of the new administration in 2017

Jim McGoldrick: A Dean’s Tribute

Tribute to Pepperdine Caruso School of Law Professor James M. McGoldrick, Jr

Are Scholars Better Bloggers? Bloggership: How Blogs Are Transforming Legal Scholarship

A perennial debate in higher education in general, and in legal education in particular, is whether a robust scholarly life helps or hurts a professor’s teaching performance. Taking inspiration from panelist Jim Lindgren’s work, Are Scholars Better Teachers?, which concludes that better scholars are perceived by students to be better teachers, Caron asks a panel, “Are Scholars Better Bloggers?” These comments explore both scholarship and blogging data to begin to answer that question

Tax Advice for the Second Obama Administration

Twenty-five of the nation’s leading tax academics, practitioners, journalists, and public intellectuals gathered in Malibu, California on the Friday before President Obama’s second inauguration to plead for tax reform. The papers published in this issue of the Pepperdine Law Review provide very different prescriptions for America’s tax ills. But there is a unanimous diagnosis that the country’s tax system is sick indeed. A re-elected president’s inauguration offers a particularly propitious moment to put politics aside and embark on a treatment plan. If our lawmakers are interested in healing our tax wounds, the ideas presented in these pages offer a good place to begin. They run the gamut from relatively minor procedures to total transplantation. But all would improve the health of our current tax system

The Federal Tax Implications of Bush v. Gore

Part I reviews the pre-Bosch confusion regarding how much deference federal courts should give to prior state court decisions in federal tax litigation. Federal courts used and advocated a wide variety of approaches during this period, none of which properly accommodated the underlying revenue and comity interests. Part I then turns to the Bosch decision and the original promise of the “proper regard” standard as a way to balance these competing concerns. Part II explains how in practice federal courts have converted this “proper regard” deference standard into a de novo standard of review. Over one thousand federal court cases have cited Bosch over the past thirty-four years, and courts in a clear majority of those cases in which the taxpayer was involved in prior state court litigation have refused to follow the state court’s interpretation of state law in the federal tax proceeding. As a result, the federal courts, in practice, have converted the “proper regard” standard into a license to give “no regard” to state court decisions on state law. Part III discusses the recent Bush v. Gore decision and argues that it is inconsistent with this “no regard” approach. The enormous interest generated by the Bush v. Gore decision makes this a particularly propitious time to rethink this nettlesome question of federal tax law. Part IV argues that the Erie doctrine provides the best vehicle for reconciling Bosch with Bush v. Gore. The complete-deference approach originally embraced by the Supreme Court and recently resurrected by commentators exalts the Bush v. Gore comity interest at the expense of the federal revenue interest. The nonadversary proceeding test adopted by the Internal Revenue Service (the Service) and commentators in recent years inevitably degenerates into a pointless inquiry into the requisite degree of adversariness necessary to make a lower state court decision on state law controlling in subsequent federal tax litigation. Procedural devices such as federal court certification of state law questions to state courts and joinder of the Service in the state court action also do not provide a workable solution to this intractable problem. This Article rejects the “no regard” approach in the existing case law and instead contends that a federal court should apply the same standard of review to a state court decision as would have been applied had the decision been appealed in the state court system. This “bottom-up” approach is consistent with recent cases and commentary on the Erie doctrine. This revitalization of the “proper regard” standard allows federal courts to protect the federal revenue interest without undermining the comity concern by allowing state courts, in most situations, to be the final arbiter of state law. Only in the rare tax equivalent of the Bush v. Gore case should federal courts step in and overturn a state court’s application of state law

Rethinking the Penalty for the Failure to File Gift Tax Returns

In this article, the authors argue that Congress must reform the penalty structure associated with the failure to file gift tax returns if it wants to maintain the integrity of the transfer tax system