Elective Taxation on Inbound Real Estate Investment

Since 1980, the United States has taxed U.S. real property gains of foreign investors. A nonresident must pay tax on the capital gain from the sale of U.S. real property or rights in U.S. real property, as well as on the sale of shares in non-publicly held domestic corporations that hold significant U.S. real property assets. The United States imposes a withholding liability on the purchaser based on a percentage of the purchase price. Moreover, by owning U.S. real property, foreign investors are subject to Internal Revenue Service (IRS) investigatory powers. Because of these rules, foreign investors spend significant resources to structure investment in U.S. real property assets to avoid being deemed an owner of the underlying real property for taxation purposes. This has rendered the underlying statute, the Foreign Investment in Real Property Act of 1980 (FIRPTA), elective.This electivity results in the United States exhibiting tax haven characteristics for inbound real estate investments. Rather than tightening the rules to eliminate this friction, Congress has recently proposed even looser requirements. The resulting narrative by practitioners and policy makers is that FIRPTA should be eliminated. The United States currently needs more, not less, collection of taxation. The fact that FIRPTA is either easily arbitraged or not properly collected should not result in the repeal.This Article proposes a new way of addressing FIRPTA by expanding the use of reporting requirements to capture the leakage and provide a mechanism for effectively eliminating the use of structuring to avoid the tax. Through the introduction of systems recently employed in the Foreign Account Tax Compliance Act (FATCA) regime, Congress can implement an effective penalty structure to ensure proper collection of taxation and achieve the stated goal of FIRPTA -- an equal tax burden independent of the status of the investor. The goal of the proposal is to have a more cohesive and coherent FIRPTA regime by replacing a gross income tax regime with a net income tax regime with a backup withholding. Given the United States’ position as a market leader in a limited market, there should be a more aggressive tax collection stance taken. The U.S. real property market is relatively inelastic as compared to equities; thus, an aggressive U.S. position will not have much if any downside

Justice for All: Reimagining the Internal Revenue Service

The ability of the Internal Revenue Service to both collect the tax and enforce the initial determination of tax liability in a neutral and fair manner has been compromised by a February 2011 pronouncement issued by the Department of Justice stating that the President and the Department of Justice believe that section 3 of the Defense of Marriage Act is unconstitutional and that the Department of Justice will no longer defend the statute in courts. The pronouncement results in a disparate treatment of similar taxpayers based solely on the forum of litigation. Through this lens, I examine whether it is proper for the Department of Justice and the Internal Revenue Service to continue to share prosecutorial powers when such results are possible. Assuming that any incremental improvement is desirable as long as does not harm one person, I conclude that the Department of Justice should have exclusive litigation authority to protect against this very result

Am I the Only Person Paying Taxes? The Largest Tax Loophole for the Rich - Exchange Funds

President Obama is faced with a national debt at over $11 trillion and needs to fund projects such as National Health Care with an ever-shrinking tax base. As the economy has slowed, so have tax revenues. It would then make sense for the government to reexamine tax carve-outs that only benefit the wealthy. In fact, President Obama is on record saying he wants to eliminate tax loopholes. After almost fifty years, the time is ripe to eliminate one of the few congressionally authorized tax loopholes—the$30 billion Exchange Funds. This Article addresses the social equity arguments and the tax and economic theories to solve the perceived problem. The Article thoroughly covers, through unique access to materials not available in traditional legal sources, including fund private placement memorandum, the basics of fund details, fund formations, and the tax rules, and suggests solutions to solve the social inequity. This Article not only proposes how to create legislation to tax the current arrangements but offers a solution utilizing the Code and Regulations to tax these vehicles

Carried Interest: Can They Effectively Be Taxed?

During the April 2008 Democratic Debate, former Senator Obama with former Senator Clinton almost referred to the subject matter of this article verbatim at page three of the transcript. ( We saw an article today which showed that the top 50 hedge fund managers made $29 billion last year--$29 billion for 50 individuals. And part of what has happened is that those who are able to work the stock market and amass huge fortunes on capital gains are paying a lower tax rate than their secretaries. That\u27s not fair. ) (http://abcnews.go.com/Politics/DemocraticDebate/story?id= 46702 71&page= 1). As stated by both candidates, the budget is going to be a major source of contention, and revenue raisers, such as the proposed legislation under Internal Revenue Code (I.R.C.) § 710, will be a hot button item. It was estimated by a Congressional committee that the fund managers would save $30 billion in taxes over the next ten years if the rules did not change. As promised, on page 122 of President Obama \u27s 2009 budget is the proposal to tax carried interest as ordinary income. It is suggested that this change will raise$2.7 billion in tax revenue in 2011. The initial public offering (IPO) of Blackstone Group stock caused a public and political backlash when an IPO memorandum showed how much built-up gain existed in Alternative Investment Vehicles ( AIVs ). These offerings spurred public interest in the quantitative net worth of the owners of the funds, like Stephen A. Schwarzman, a cofounder of Blackstone, and the tax rates paid by these owner individuals. Congress also began to focus on the tax loopholes allowing these owner-individuals to monetize their carried interest at a significantly reduced tax. This surge in public interest combined with political needs for offsets to eliminate the alternative minimum tax led several influential lawmakers to seek passage of tax legislation that would reduce the tax incentives currently in place. These tax incentives primarily benefited managers of AIVs. The legislation was introduced most predominately in HR. 2834, which sought to add I.R.C. § 710 to the Code, changing the treatment of distributions to the service partners from capital gain rates to ordinary income rates. Thus, the bill contains provisions that seek to completely reverse over thirty years of jurisprudence with a shotgun approach in attempting to solve what is deemed an injustice by some. This article addresses the social equity arguments and the tax and economic theories to solve the perceived problem. Will the managers, if subjected to higher taxes, attempt to maximize the value for the investors? If one believes that there are enough people who want to be rich, then there is no reason to further incentivize the fund managers by taxing the fruit of their labor at reduced rates. There will always be ambitious and smart people who would be more than happy to step in and do these services even at higher tax rates. Further, it has been argued that a lower tax rate will not be sufficient to change the behavior of this category of individuals. One would have to demonstrate that fund managers would have to either reduce their current work efforts, if the rates were raised, or that this class of individuals is more sensitive to tax incentives than other professions. The article then concludes with a thorough discussion of the current law and the proposed changes to solve the social inequity. The article discusses the proposed H.R. 2834 and whether the proposed tax legislation will ultimately be successful in raising revenues as Congress intends. The article concludes with a thorough discussion of the current law and the proposed changes. Under the proposed legislation, the result would be to tax the general partner at ordinary income rates. This would mirror the treatment of nonqualified stock options. The carried interest would still retain the deferral characteristic but would be taxed when they are redeemed by the fund managers at ordinary income rates. However, it is argued that this approach would lead to tax planning such as the utilization of loans

DOMA and Diffusion Theory: Ending Animus Legislation through a Rational Basis Approach

Same-sex couple rights are the topic of much discussion and debate. There are court challenges to the constitutionality of the Defense of Marriage Act (“DOMA”) as well as proposed marriage statutes. The message and the structure for the recognition of same-sex rights need to be modified. This Article proposes applying, for the first time in the area, modern sociology theory, specifically Diffusion Theory, to change how the message is delivered. Using Diffusion Theory to change the message frame will change judicial decisions. By using the backdrop of the Florida adoption statute, a comparison between the successful challenges to the Florida statute is made to the current challenges to DOMA. This challenge shows how, through the Diffusion lens, same-sex couples were able to change judicial opinion through empathy

DOMA and Diffusion Theory: Ending Animus Legislation Through a Rational Basis Approach

The purpose of this Article is to expand the scope of the discussion from one of morality to include a sociological approach, called Diffusion Theory...Section II of this Article explains Diffusion Theory. Section III explores the background of DOMA and the factual background in which DOMA is being challenged by the states and private citizens. Section IV discusses the fundamentals behind the Florida adoption ban and how the change in the message by the challengers has proven effective. The final part, Section V, analyzes whether the approach should center on the inevitability of the change, as reflected in the Justice Department’s brief