The Inappropriateness of the Bad Checks Penalty

In this article, the authors argue that the penalty for sending a bad check to the IRS is excessive and that the reasonable cause exception should apply to any honest factual error

Free Rider: A Justification for Mandatory Medical Insurance Under Health Care Reform?

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number of lawsuits contending that it is unconstitutional. It is not our purpose in this article to discuss its constitutionality. Rather, this piece focuses on the viability of one of the justifications that often is put forth for the adoption of the individual mandate: the “free-rider” problem

Recovery for Causing Tax Overpayment - Lyeth v. Hoey and Clark Revisited

The question has arisen in numerous cases as to the extent to which a settlement between arms’ length parties is dispositive in tax cases of the claims on which the settlement is based. Another issue that often arises is whether the receipt of compensation for a tax payment that was incurred because of the negligence of the payor is excluded from gross income. While those two issues were central to the proper resolution of a recent case in the United States Court of Appeals for the Eleventh Circuit, McKenny v. United States, the court failed even to note one of those issues and did not resolve the other. The court’s failure to deal with those two issues led it to reach an incorrect result. The two landmark cases establishing the doctrines that should have been applied in McKenny are the Supreme Court’s decision in Lyeth v, Hoey and the decision of the Board of Tax Appeals (now known as the Tax Court) in Clark v. Commissioner. Using McKenny as a springboard, this article reviews the continued misapplication and sometimes disparagement of the Lyeth v. Hoey and Clark v. Commissioner reasonings. Clark, in particular, has been criticized by both academics and the Service. The article reviews those criticisms and argues that they are unpersuasive. The article concludes that both doctrines are valid and should have applied to find for the taxpayer in the McKenny case

Tax and Cross-Collateralized Nonrecourse Liability

This Article explores the tax treatment of cross-collateral nonrecourse debt. When using the term cross-collateral debt, we are referring to non¬recourse debt that is connected with more than one piece of property. While tax issues concerning cross-collateralized properties can arise in several circumstances, the focus of this Article is on the tax treatment of a transfer of property subject to a cross-collateralized nonrecourse lia¬bility to a controlled corporation in exchange for stock that qualifies for some or all nonrecognition under § 351. The Article also discusses two other tax issues involving cross-collateralized nonrecourse liability—namely, cancellation of debt and determination of basis issues

Free Rider: A Justification for Mandatory Medical Insurance Under Health Care Reform?

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number of lawsuits contending that it is unconstitutional. It is not our purpose in this article to discuss its constitutionality. Rather, this piece focuses on the viability of one of the justifications that often is put forth for the adoption of the individual mandate: the “free-rider” problem

Cancellation of Debt and Related Transactions

If a taxpayer borrows money, the borrowed funds are not included in the taxpayer’s gross income. That treatment is proper even though the taxpayer has increased his assets by the amount he borrowed because he also has created a corresponding liability to pay back the loan. The taxpayer’s net wealth has not increased. The more difficult and interesting questions arise when the taxpayer fails to repay the loan. At first blush, it would appear that upon cancellation of a loan, the taxpayer should have income for the amount that was cancelled. However, the current tax treatment is not that simple. A number of exceptions exist to the straightforward treatment under which the cancellation requires the taxpayer to recognize income. Some of those exceptions reflect an application of normal tax principles while others exist for programmatic purposes. Those exceptions make the tax treatment of cancellation of debt particularly complex. The goal of this Article is to set out the tax treatment of cancellation of debt, including the many exceptions that apply. It first reviews the history of the cancellation of debt rules, which helps explain how we arrived at the current treatment. It then covers the current statutory treatment of cancellation of debt as well as the many common law rules (such as the transactional approach and the tax benefit rule) that apply