Problems and Materials in Federal Estate And Gift Taxation. By Ralph S. Rice.

The materials available for teaching a course in federal an gift taxation were somewhat limited prior to the publication of Professor Rice’s volume. The only other full treatment of the subject matter is that of Dean Warren and Secretary Surrey, which was published in 1961. Dean Griswold and Professor Bittker devote 200 to 378 pages respectively to federal estate and gift taxation, no doubt in response to the traditional view that federal taxes constitute a unified body of learning to which a student should be introduced in one course. However, none of these materials, prepared by authors whose contributions to the teaching of federal income tax are both monumental and significant, is conducive to teaching the kind of estate and gift tax course I would prefer. Therefore, I awaited my first experience with Professor Rice’s materials with some anticipation. On the whole, my students and I enjoyed using them

Art Resale Royalty Options

A federal resale royalty law that would require payments from the reseller of art to an artist when her work is resold is under consideration. This article analyzes provisions that might be contained in such a law with comparisons to Australia, England, France and California. It begins by pointing out that these payments can be conceptualized as either a substitute for copyright royalties or for the profits of a joint venture between the artist and the collector. It analyzes the kinds of artwork on which a resale royalty should be payable, with specific attention to multiples, crafts, antiques and wine. Sales might be subject to the royalty based on the place of sale, the nationality or residence of the seller, buyer, intermediary or artist. Minimum proceeds or a profit might be required. Such a law should define what constitutes a sale in light of auction practices like reserve prices, and whether leases, exchanges, gifts, bequests, charitable donations, loans or casualty losses should trigger a royalty payment. The base on which the royalty is paid must be determined. If the base is to be gross sales price, is that the amount the seller receives, the amount the buyer pays, or some other amount? If the base is to be net profit, one must determine what expenses of holding the art and effectuating the sale may be deducted from the sales price. The royalty could be imposed at a flat rate, a variable increasing rate, or a variable decreasing rate. Its amount could be capped. All such laws benefit the artist who created the work, but many laws also benefit surviving spouses or heirs. The benefit might be limited to citizens or residents of the country, or of a country that provides reciprocal rights to our citizens or residents. The right could last for a short time after the first sale, for the duration of the copyright, or forever. Whether the right should be waivable or transferable has been hotly contested. A system needs to be worked out when the law of more than one country would compel a payment for the same resale. One needs to consider the income, gift and estate tax consequences of the payment or receipt of the royalty and the transfer of the underlying right. The most important aspect of any such law would be its enforcement provisions. With the facts largely within the knowledge of the seller and his agents and unavailable to the artist, most laws simply impose an obligation on the seller to pay and his agent to withhold. That has proven insufficient to effectuate the royalty. The law needs to specify a time for payment, an obligation to make information available without specific request, effective remedies for failure to comply, the role of collecting societies and statutes of limitations, and the interface between private collection and the role of government agencies such as the Register of Copyrights and the Internal Revenue Service

Uniform Interpretation of CISG

This UN Convention on Contracts for the International Sale of Goods (CISG) has been U.S. law for a generation and requires that it be interpreted “to promote uniformity in its application”. This article argues that uniform interpretation is impractical because 1) it is written in six official languages which do not always mean the same thing; 2) with more than 90 countries’ courts and arbitrators applying CISG, each in its own language, some of which do not regularly print their opinions, it is difficult to access all opinions on a single point; 3) since Civil Law countries consider the writings of distinguished professors to be sources of law, those writings must also be accessed; 4) there is no official authority interpreting CISG, though the unofficial CISG Advisory Council issues its interpretations from time to time; 4) CISG interpretations are to be autonomous, not analogous to comparable provisions of domestic law, which means that many opinions interpreting CISG must be disregarded because they are self-declared as analogous. The article then discusses the New Zealand mussel case, clearly the right result announcing the wrong rule, and asks how a court should decide the next case in a uniform manner considering the strength of the precedent, the factual differences between the precedent and the current case, and the likely impact of the rule announced on the next case to come before a court or arbitration panel. The conclusion is that although full uniformity is impossible (and may not even be desirable), it is a goal worth pursuing, though the fears of forum shopping if there is no uniformity are quite overblown

Real Property

During the year, the California courts made the acquisition of property, either by adverse possession or possession as a result of the owner\u27s abandonment, more difficult. While the courts did not change the rules of law they insisted on their pristine application. This demonstrates an understandable tendency, in an urbanizing society, toward restricting the transfer of title by possession alone to non-owners

Business Impact of the United States-France Income Tax Protocol

This Article examines the 1978 Protocol to the France-United States Income Tax Treaty, and examines the operation of those provisions that impact businesses and their employees. The author specifically reviews provisions affecting partnerships, retired persons, investment income, certain fringe benefits, interest, business trips, and shipping and aircraft. The author concludes that, compared to the treaty it modifies, the Protocol does a good job of reducing double taxation, but it does not do the best job

Art Resale Royalty Options

Proposed federal law requires payments from the reseller of art to an artist when her work is resold. They can be conceptualized as a substitute for copyright royalties or for the profits of a joint venture between the artist and the collector. Application is analyzed by art type, especially multiples, place of sale, and nationality or residence of the seller, buyer, intermediary or artist, and by what constitutes a sale in a world of leases, exchanges, gifts, bequests, charitable donations, loans and casualty losses. If the base is gross sales price, is that the amount the seller receives, the amount the buyer pays, or another amount? If the base is net profit, allowable expenses of holding and selling the art must be determined. Such laws benefit the artist; some also benefit surviving spouses or heirs. The benefit might be limited to citizens or residents of the country, or of a country providing reciprocity. The right could last for a short time after the first sale, for the duration of the copyright, or forever. Whether the right should be waivable or transferable has been hotly contested. When laws of multiple countries apply, choice of law is needed. The tax consequences of transferring the underlying right and the payment or receipt of the royalty are important. Enforcement provisions are discussed, such as withholding, information reporting, remedies, and the roles of collecting societies, statutes of limitations, and government agencies. Comparisons are made to Australian, English, French and California law

Harmonization of European Company Laws: National Reform and Transnational Coordination by Eric Stein.

This is primarily a book about the legal process. It concerns a specific legal process-the process of harmonization of laws within the European Economic Community-and, despite the author\u27s modest disclaimer, is teh best work that anyone, be he lawyer or political scientist, is likely to produce. Professor Stein is sophisticated in his views, appallingly universal in his research, subtle in presenting arguments, yet generally sound in the judgments he makes and the conclusions he draws