Taxation and Surveillance: An Agenda

Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration will become increasingly important to consider. This Article provides an agenda of items for discussion, debate, and research related to the development, implementation, and effects of a surveillance-facilitated tax system

The Effect of Legal Professionalization on Moral Reasoning: A Reply to Professor Vischer and Professor Wendel

I am grateful to Professor Vischer and Professor Wendel for their responses to my essay, Professionalizing Moral Deference; I learned a great deal from each piece. I also appreciate their patience in enduring my finalization of the essay and am indebted to them both for their personal indulgence and intellectual stimulation. The aim of my earlier essay was to open a new discussion of lawyers and morality through my reflections on the so-called “Torture Memo.” Specifically, my essay focuses on the effect of legal training and practice on lawyers’ moral reasoning. It explores the ways in which we, as lawyers, “come to engage in . . . strategic reasoning,” and express “concern[] about [the] cost to our moral reasoning skills.” The core argument is that “lawyers are professionalized in a manner that undermines moral reasoning skills,” and that “[t]o suggest that we who are officers of the American judicial system are deficient in moral reasoning is to suggest a deep problem.” To address this deep problem, I suggest lawyers accept personal moral accountability for professional projects undertaken, idealizing those lawyers who choose their professional projects on personal moral grounds. Thus, I believe lawyers—such as the authors of the Torture Memo—are subject to criticism on grounds of morality and not merely professional technique. The responses of Professor Vischer and Professor Wendel, though thought-provoking, do not address my focus on the effect of legal training and practice on lawyers’ moral reasoning. Instead, the responses of Professor Vischer and Professor Wendel focus on the role of moral reasoning in legal reasoning

The Effect of Legal Professionalization on Moral Reasoning: A Reply to Professor Vischer and Professor Wendel

Responding to comments made on Professionalizing Moral Deference

Ignore the Rumors—Campaigning from the Pulpit Is Okay: Thinking Past the Symbolism of Section 501(c)(3)

This Article is enough to ruin many Thanksgiving family dinners. It is about American religion, politics, and taxes. Mostly it is about taxes. As I will explain, this is what sets it apart from the contemporary legal scholarship exploring the campaign restrictions on tax exempt churches. This Introduction identifies the problem addressed in the article, then introduces the contemporary legal scholarship and the alternative approach this article takes. Part I of this Article introduces the reader to the legal context of the problem of churches being unable to campaign if they choose to be Tax Exempt under Section 501 (c) (3). Part II provides an overview of the current legal scholarship, which assumes that tax exemption is essential to churches\u27 financial well-being, and hence has been labeled Exemption Essentialism. Part III is a hypothetical tax-by-tax exploration of the claim that Section 501 (c) (3) may not be essential to churches. Part IV suggests some implications for churches, the government, legal scholars, and partisans if, in fact, tax exemption is not so valuable that it should deter churches from campaigning, if they are so inclined. Finally, the Conclusion recaps the Article

Fifth Circuit Survey: Taxation

During the survey period, the Fifth Circuit decided nine federal tax cases. Four of the nine cases were appealed from district courts. The remaining five were appealed from the Tax Court. Three of the Tax Court\u27s five decisions (60%) were affirmed, and three of the four district court decisions (75%) were affirmed. Thus, the Fifth Circuit affirmed most of the lower court decisions (66%). Interestingly, only three of the decisions (33%) favored the taxpayer—EC Term of Years Trust v. United States; Garber Industries, Inc. v. Commissioner; and Estate of Baird v. Commissioner—even though the Fifth Circuit is often known as a taxpayer-friendly circuit. As usual, the cases covered a broad range of issues from tax protests to family partnership valuation. In Gandy Nursery, Inc. v. United States, the Fifth Circuit reversed an award of post-judgment interest by the Eastern District Court of Texas and remanded the case to determine whether there had been unauthorized collection practices. In Estate of Baird v. Commissioner, the Fifth Circuit reversed the Tax Court for abusing its discretion in determining that the Internal Revenue Service (IRS) had substantial justification for its legal position and remanded the case to determine the amount to be awarded to the estate because the IRS did not have substantial justification. In Strangi v. Commissioner, the Fifth Circuit affirmed the Tax Court\u27s determination that Albert Strangi had impermissibly retained enjoyment of assets contributed to his family limited partnership. This was the fourth case in a series involving the Albert Strangi estate. In United States v. Simkanin, the Fifth Circuit affirmed the conviction of a tax protestor in the Northern District Court of Texas. In United States v. Saldana, the Fifth Circuit affirmed the convictions and sentences given by the Western Texas District Court to two brothers who filed false statements with the IRS to harass certain individuals. In Estate of Smith v. Commissioner, the Fifth Circuit decided that the Tax Court was without jurisdiction and vacated the Tax Court\u27s judgment that the IRS was precluded from offsetting unpaid interest against the overpayment due to the estate. In EC Term of Years Trust v. United States, the Fifth Circuit affirmed the United States Western District of Texas Court\u27s dismissal of a refund claim when the sole remedy was a wrongful levy action. In Garber Industries, Inc. v. Commissioner, the Fifth Circuit affirmed the Tax Court\u27s application of family attribution rules in a corporate reorganization, which limited the corporation\u27s deduction for net operating loss carryforwards. Finally, in Deaton v. Commissioner, the Fifth Circuit upheld the Tax Court\u27s determination that remittance filed with an application for a filing extension was a payment of estimated taxes rather than a deposit

Fear, Legal Indeterminacy, and the American Lawyering Culture

On August 1, 2002, then Assistant Attorney General Jay S. Bybee signed for President Bush a memorandum of law concluding that some torture was not necessarily illegal if the President ordered it. This Essay examines how Bybee could arrive at a conclusion that is fundamentally at odds with both our national moral spirit and our law. In doing so, it cautions American lawyers to recognize the difference between what is legal and what is arguably legal, and to be aware of their own extra-legal biases when interpreting the law