Emerging Cryptocurrencies and IRS Summons Power: Striking the Proper Balance between IRS Audit Authority and Taxpayer Privacy

To protect the privacy and other civil liberties of its citizens, federal courts place limits on the power and actions of government. These limits create a need for balance between the IRS’s mission of tax law enforcement and taxpayers’ privacy rights. A much-watched contemporary lower court case intersecting cryptocurrencies, summons power, and taxpayer privacy is Coinbase v. U.S. There, the IRS sought to summons massive amounts of customer information from Coinbase, a cryptocurrency exchange platform. This article examines the history of the IRS summons power and argues that the Coinbase court correctly extended a wealth of summons enforcement case law by weighing the protection of taxpayer privacy with the tax compliance mission of the IRS. By allowing the IRS summons to stand, but limiting and defining the scope of relevant records allowed to be examined, the Coinbase court correctly balanced IRS tax enforcement with taxpayer data privacy.

Proposed Treasury Regulations Address Tax Treatment of Modifications of Debt Instruments Made to Transition Away from LIBOR

Trillions of dollars of debt instruments rely on the London Interbank Offered Rate (“LIBOR”) as a reference for establishing the interest rate payable on debt instruments. However, recent financial scandals and lack of a robust underlying market using LIBOR have resulted in the expectation that LIBOR will no longer be available after 2021. Thus, it will be necessary for such debt instruments to transition away from using LIBOR. Concerns have been raised regarding the potential tax implications resulting from alterations of debt instruments that transition away from LIBOR, including triggering a taxable event and application of the OID rules. This article highlights issues related to recently published proposed Treasury Regulations and provides recommendations for revisions to the proposed Treasury Regulations.

Is it a Tip or a Gift?: Investigating Duberstein in the Modern Gratuity Era

In the modern era of social media, users frequently promote their acts of generosity. Included in these acts of generosity are tips to restaurant servers that exceed customary amounts. Due to the extraordinary amounts of the transfers, the proper tax treatment as a “gift” or a “tip” is called into question. In Commissioner v. Duberstein, the Supreme Court addressed gifts versus taxable transfers but did not provide a clear test for taxpayers. In the sixty years since Duberstein, Congress has yet to address the call of Duberstein to create an appropriate test for gift treatment. In this paper, we analyze prior law on gifts and tips. Next, we apply the law to scenarios based on current events. Finally, we recommend that Congress address transfers where the appropriate treatment as a "gift" or a "tip" is in question.

Feeling GILTI: Tax Strategies for U.S. Multinational Corporations to Navigate the Tax Cuts and Jobs Act

The Tax Cuts and Jobs Act made significant changes to the U.S. taxation of foreign earnings. The most significant change is the 100 percent dividends-received deduction that generally applies to income earned by foreign subsidiaries. This represents a shift from U.S. tax deferral to U.S. tax exemption of foreign profits, which increases the potential benefit to shifting U.S. income to low-tax foreign jurisdictions. To limit this potential income shifting, Congress enacted new rules, known as GILTI, to supplement the already existing Subpart F rules. In this article, we briefly review the history of U.S. international tax policy and analyze the technical aspects of GILTI. We then discuss some general tax planning strategies and propose four specific tax strategies for companies to consider for minimizing the increased tax burden associated with GILTI. Lastly, we consider whether GILTI is good tax policy and make recommendations to improve the legislation.

A New Examination of an Old Question: Is it Constitutional to Tax Marriage?

ABSTRACT In 2015, the U.S. Supreme Court recognized the fundamental right to marry in Obergefell v. Hodges. At the same time, the tax code commonly taxes married couples at a higher effective tax rate than their unmarried counterparts. We examine the constitutionality of the penalty on marriage, critically reviewing the justification for the penalty accepted in Johnson v. U.S. in 1976. Our evaluation of the tax system suggests that the marriage tax penalty violates due process and may violate equal protection and the First Amendment for some taxpayers. JEL Classifications: D15; H21; H24; H31; K34.

Instilling Subpart F with Horizontal Equity as Applicable to Individual U.S. Shareholders

ABSTRACT Subpart F of the Internal Revenue Code is a body of anti-abuse provisions designed to prevent U.S. shareholders from avoiding tax on the earnings (Subpart F income) generated by foreign corporations they control. Overall, its provisions lack the tax principle of horizontal equity based on tax neutrality. This article will expose the lack of horizontal equity, as applied to individual (not corporate) U.S. shareholders, by being both over-inclusive and under-inclusive. It is over-inclusive in imposing punitive tax consequences when tax avoidance is unachievable, including the taxation of GILTI, a new type of Subpart F income. It is under-inclusive because tax avoidance is achievable by taking advantage of certain loopholes in Subpart F. Using IRC §469 (that successfully eliminated tax shelters) as a model, this article recommends revisions to relevant Subpart F provisions that will eliminate tax avoidance without punitive tax consequences and also foreclose potential tax avoidance opportunities.

Code Section 304: The Gift That Keeps on Giving

ABSTRACT The Tax Cuts and Jobs Act (TCJA) has created a unique opportunity to utilize Code Section 304 and Code Section 245A as powerful tax-planning tools. By utilizing the rules established for redemptions between related corporations under the anti-abuse provisions of Code Section 304 combined with the new 100 percent DRD of Code Section 245A, extracting earnings from affiliated foreign corporations tax-free has never been easier. This paper explains how these two code sections interact with each other and the resulting ability to extract certain foreign-sourced earnings tax-free. It also identifies incentives created by the TCJA to operate profitable businesses overseas and expected loss operations in the U.S. Finally, the paper offers a legislative change to close the tax avoidance loophole created by the TCJA. JEL Classifications: H2.