TaxProf Blog

John T. Holden (Indiana) and Kathryn Kisska-Schulze (Clemson) have published The Taxable Future of College Sports, 77 Ala. L. Rev. 287 (2025). Here is the abstract: 

College sports are changing. Historically the National Collegiate Athletic Association (NCAA) exercised a strong arm to prohibit college athletes from receiving any form of compensation. Today, a power shift is occurring across the entire college sports arena. Gone are the days of college athlete earnings prohibitions; the NCAA is losing strength and influence, while the athletes themselves are taking to the courtroom to break down century-long restraints on trade. Since 2021, name, image, and likeness (NIL) compensation has become the new norm, revenue-sharing between institutions and their athletes is coming, conferences are expanding to further capitalize on increased broadcast revenue, and the Third Circuit Court of Appeals set the stage for college athletes to one day be deemed employees of their institutions under select labor laws.

Amidst this rapidly evolving billion-dollar industry, questions have emerged about the potential tax consequences resulting from such changes. Historically, the greater college sports arena largely enjoyed significant shielding from the bounds of taxation. However, as college sports enters a new era that is inherently different and distinct from the NCAA’s archaic ideology of pure amateurism, tax questions relating to the classification of college athletes as employees versus independent contractors, differing earnings models tied to revenue-sharing versus NIL opportunities, and the financial impact of college athletic conference expansion are surfacing. The purpose of this Article is to take a deep dive into the impending tax considerations that could impact the future of college sports.

Clint Wallace (South Carolina) & Bret Wells (Houston) have published The Past and Future of Taxing “Incomes”, 104 N.C. L. Rev. 1 (2025). Here is the abstract:

For at least half a century, the text of the Sixteenth Amendment—“Congress shall have power to lay and collect taxes on incomes, from whatever source derived”—has been treated by courts, lawmakers, and scholars as giving Congress broad authority to define and tax income, perhaps without any limitation. Recently, however, some members of the Supreme Court started to revive a seedling planted in the 1920s but left for dead: that the “realization rule” should be elevated to the status of a constitutional limit to Congress’s power to determine what is income. With this, we seem to be entering a new era in constitutional tax jurisprudence, focused on the meaning of income and limits to Congress’s power to tax it.

This Article places realization in broader context, based on a novel investigation of the intellectual and functional roots of U.S. federal income taxation, with a particular focus on the temporality of income. We find commonality between time-conscious income tax theory developed by leading economists in the preratification era (some now largely forgotten), and functional concerns percolating around the same time that we uncover in financial accounting practices and tax administrative guidance. Temporal issues are central: measuring income across time periods is a dynamic and complex undertaking, and theorists and practitioners alike recognized realization as one of many possible, partial resolutions. The history we uncover here dispels the notion, advanced recently by some scholars and Supreme Court Justices, that when the Sixteenth Amendment was ratified there was a common understanding of income that rested solely on realization. It suggests instead that there was not a single meaning of “incomes” as limited to realized gains, but rather that income had different meanings in different contexts.

Grant Christensen (Alabama) and Andrew Appleby (Tennessee) have posted Taxing Indigenous Cultural Property, 52 BYU L. Rev. (forthcoming 2026). Here is the abstract:

What is the value of something that cannot legally be sold?  This question lies at the heart of a growing tension between federal tax policy and Indigenous rights.  Although federal law prohibits the sale of eagle feathers, the IRS recently sought to collect a $29.2 million estate tax assessment on artwork incorporating a bald eagle—even while acknowledging the beneficiary could not legally sell the artwork to satisfy the tax liability.  Though the parties ultimately settled, this case exposes a dangerous precedent demanding a comprehensive response.

This Article argues that Indigenous cultural property should be exempt from federal and state taxation and subject only to regulation imposed by Native communities themselves.  Imposing a “tribal only” regulatory scheme for cultural property is both consistent with the underlying purposes of tax law and the federal government’s broad commitment to support tribal self-government and protect tribal sovereignty.

We build our normative claim upon two centuries of precedent and practice.  Drawing upon the underlying purposes of tax law, tribal law, and federal Indian law, this Article constructs a robust defense for Indigenous cultural property’s exclusion from federal regulation.  Our argument rests on two foundational premises.  First, inherent tribal sovereignty reserves to tribal governments the authority to govern the cultural and internal values of their communities.  Second, federal tax law has no overriding interest in interfering with the inheritance of cultural property between tribal members or in collecting revenue on property that cannot legally be sold.  From these premises, a natural consequence emerges: non-tribal regulation of this patrimony should be broadly prohibited.

The implications are profound.  If adopted, our proposal would free tribal members from the burdens associated with transferring cultural property under non-tribal law and would ensure Native Nations that the property forming the basis of their identity is free from federal and state encumbrance.