a surfer in front of the malibu pier on a sunny day

Paul L. Caron
Dean
Pepperdine Caruso
School of Law

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  • Tax Consequences of Cicada Invasion

    Monday, June 14, 2004

    Photo of CicadaFor those of us living in cicada country (DC, Indiana, Georgia, Kentucky, Maryland, New Jersey, North Carolina, Ohio, Pennsylvania, Virginia & West Virginia), the past several weeks have been disgusting as billions of the “Brood X” insects have tunneled to the surface after lying dormant underground for the past 17 years. Although the cicadas are not harmful to humans, they can damage young trees on which they climb to mate and then lay eggs on the branches. Which naturally got me to thinking: what are the tax consequences of these little buggers?

    It turns out that there is a neat tax issue concerning the deductibility of losses caused by the cicadas. Although the tax code generally disallows the deduction of personal losses, § 165(c)(3) allows taxpayers to deduct losses from “fire, storm, shipwreck, or other casualty, or from theft.” So does tree damage from cicadas constitute a “casualty” loss?

    To be treated as a casualty, a loss must be “sudden,” “unexpected,” and “unusual.” There is quite a bit of law on the application of these terms to maladies suffered by homeowners: tree damage caused by diseases like dutch elm, oak wilt, and lethal yellowing does not qualify as a casualty loss because it is not suffiiciently “sudden” but rather manifests itself over a period of months or years. Termite damage also does not qualify as a casualty loss for this reason.

    Yet tree damage caused by pine beetles and draught can qualify as a casualty loss if it is sufficiently “sudden.” Can damages from a cicada attack fit within this line of cases? There is no law directly on point, and the leading tax treatise by Boris Bittker and Larry Lokken (who, it should be noted, live in cicada-free states) raises in jest the casualty loss treatment of the plague of locusts in Exodus 10:13. Although cicadas are not locusts, their reappearance on schedule after 17 years would appear to make them not “unexpected” in casualty loss parlance and thus any losses nondeductible. (Of course, since casualty losses in any event are not deductible unless thay exceed 10% of the taxpayer’s income per § 165(h)(2), as a practical matter this section screens out most, if not all, of the potential cicada damage cases.)

  • Top 5 Tax Paper Downloads

    Sunday, June 13, 2004

    There is a new paper on week’s list of the Top 5 Tax Paper Downloads on SSRN, debuting at #5:

    1. Corporate Tax Avoidance and High Powered Incentives, by Dhammika Dharmapala (Connecticut – Economics Department) & Mihir Desai (Harvard Business School)

    2. The New Dividend Puzzle, by William Bratton (Georgetown)

    3. Masking Redistribution (or its Absence), by Jonathan Baron (Penn – Wharton) & Edward McCaffery (USC)

    4. Evidence of Differing Market Responses to Meeting or Beating Targets Through Tax Expense Management, by Cristi Gleason (Iowa – Dep’t of Accounting) & Lillian Mills (Arizona – College of Business & Public Administration)

    5. Tax, Corporate Governance, and Norms, by Steven Bank (UCLA)

  • Still More on Intersection of Tax, Religion, and Politics

    Sunday, June 13, 2004

    Following up on this week’s posts on the intersection of tax, religion, and politics (here and here), the IRS has sent 3-page letters to all seven national political parties with candidates running for the Presidency (bonus points if you can name all 7 without peeking) promising that it “will take whatever actions are necessary to stem abusive behavior” by churches in the campaign. In the accompanying Information Release 2004-79, IRS Commissioner Everson explained the purpose of the letters:

    We are sending the letters because we want to ensure that the political committees and the candidates they support understand the rules. As Congress considers changes to the law in this area, it is important that political organizations keep in mind the requirements of existing law. Today’s guidance does not represent a change in the rules or a change in how the IRS will administer the law in this area.

    For further elaboration of the rules restricting political activities of churches, see pages 7-11 of Publication 1818 (Tax Guide for Churches and Religious Organizations).

  • Tax Prof Spotlight: Richard Pugh

    Saturday, June 12, 2004

    Photo of Professor PughRichard Pugh has led the consummate tax life, with high powered positions in private practice, public service, and legal education.

    After graduating from Dartmouth in 1951, Professor Pugh studied at Oxford as a Rhodes Scholar and spent three years as a naval officer before returning to the U.S. to earn his J.D. from Columbia Law School (where he was an editor of the Law Review). After 3 years as a tax associate at Cleary, Gottlieb, Steen & Hamilton in New York City, he returned to Columbia in 1961 as a Professor of Law teaching courses in tax and international law.

    Professor Pugh remained on the Columbia faculty for 8 years, interrupted by 2 years of public service as Deputy Assistant Attorney General in the Tax Division of the U.S. Department of Justice. In 1969, he returned to private practice as a tax partner at Cleary, Gottlieb where he enjoyed an extraordinary 20-year career representing some of the leading national and international corporations in tax matters. He also continued to teach 1 tax course per year as an Adjunct Professor at Columbia.

    Professor Pugh began the final chapter of his tax career in 1989 when he returned to academia and accepted a position as Distinguished Professor of Law at the University of San Diego, joining an already strong tax faculty of Bert Lazerow, Virginia Shue, and Lester Snyder. Over the past 15 years, Professor Pugh has been a productive scholar, perhaps best known as the co-author of three leading casebooks: Taxation of Business Enterprises (West Group, 2d ed. 2002), Taxation of International Transactions (West Group, 2d ed. 2001), and International Law (West Group, 4th ed. 2001), as well as coordinating editor of the annual International Income Taxation: Code and Regulations–Selected Sections (CCH). His most recent law review article was published as the lead article in the inaugural issue of the San Diego International Law Journal: Policy Issues Relating to the U.S. Taxation of Foreign Persons Engaged in Business in the United States Through Agents: Some Proposals for Reform, 1 San Diego Int’l L.J. 1 (2000).

    Although Professor Pugh is in phased retirement at USD, he continues to teach a full load in the spring term and remains an active scholar, with revised editions of his casebooks and code and regulations volume in the works.

    Throughout his long tax career, Professor Pugh has held various leadership posts within the academy and profession. He is a fellow of the American College of Tax Counsel and a member of the American Law Institute. He is the former chair of The Tax Forum and past president of the U.S.A. Branch of the International Fiscal Association.

    Professor Pugh’s tenure at the University of San Diego has coincided with the schools’s meteoric rise into the top echelons of American law schools, both generally and with respect to its tax program. In recent years, USD has made a number of noteworthy lateral hires of top scholars from other law schools, including tax stars Karen Burke (from Minnesota) and Grayson McCouch (from Miami).

    In his most recent survey of law school faculty quality, Texas law professor (and rankings guru) Brian Leiter rates USD as having the 22nd best faculty among the 180 law schools (and thus confirming his earlier observations that USD was on a “steep upward trajectory” and was “on the verge of cracking the ‘big leagues’ of the great law school hierarchy”).

    Photo of USD Tax Professors In the most recent U.S. News & World Report tax rankings, USD is 11th overall and 6th among law schools with graduate tax programs. Indeed, USD’s tax program is the highest ranked program west of the Mississippi River. USD’s program is strengthened by the involvement of several national tax figures, including M. Carr Ferguson (Senior Counsel at Davis Polk & Wardwell) as Executive Advisor; Richard Shaw (Chair of the ABA Tax Section) as Distinguished Adjunct Professor; and the Honorable David Laro (U.S. Tax Court Judge) as Visiting Professor.

    By his own account, Professor Pugh is an avid tennis player and inept golfer. His legions of San Diego students have enjoyed his sense of humor – he has summered in Vermont for over 25 years and collected various examples of Vermont lore that he deploys in class to provide much-needed relief from the rigors of tax law.

    Professor Pugh is off this summer to celebrate his 50th anniversary and 75th birthday with his wife, three children and their spouses, and seven grandchildren – his greatest legacy.

    Each Saturday, TaxProf Blog shines the spotlight on one of the 700+ tax professors in America’s law schools. We hope to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the tax professorate to the attention of the broader tax community. Please email me suggestions for future Tax Prof Profiles. For prior Tax Prof Profiles, see here.

  • Joint Committee Releases Description and Revenue Effects of Jobs Creation Act

    Saturday, June 12, 2004

    The Joint Committee on Taxation has released a 261-page Description of H.R. 4520, the “American Jobs Creation Act of 2004” (JCX-41-04) along with Estimated Revenue Effects of H.R. 4520 (JCX-38-04).

  • Goldwater Institute Ties State Population Shifts to Relative Tax Burdens

    Saturday, June 12, 2004

    The Goldwater Institute has issued a report, The Tax Man and the Moving Van: Fiscal Policy and State Population Shifts, concluding that “people make rational decisions about where to work and do business, placing states into a healthy competition that gives jobs and economic strength to states with low tax burdens and favorable business climates.” Here is part of the Executive Summary:

    This study examines U.S. Census data from 1995 to 2000 in an effort to determine if, and in response to which conditions, Americans take advantage of their liberty to relocate under a federalist system. Strong evidence suggests that people exercise their options by moving into states with low tax burdens and favorable business climates, and exiting states with high tax burdens, poor business climates, and higher relative costs of living.

    Over the years examined, the 10 states with the lowest overall tax burdens (Alaska, New Hampshire, Delaware, Tennessee, Alabama, Texas, Florida, South Dakota, Nevada, and Colorado, respectively) enjoyed a total net gain of more than 1,300,000 residents resulting from across-state migration. The nine states and the District of Columbia with the highest total tax burdens suffered a total net loss of more than 1,700,000 residents as a result of migration.

    A regression analysis of the census data reveals that tax burdens, business climate, and cost of living strongly influenced millions of household decisions to move across state lines during the late 1990s. These inflows and outflows are significant enough to profoundly impact the political and economic strength of states.

    (Thanks to reader Ben Cunningham for the tip.)

  • Who Am I?

    Friday, June 11, 2004

    Who is this non-tax professor at Harvard?

    • From Brian Leiter: “Harvard Law School’s best-known and least accomplished faculty member. (Folks outside law don’t seem to know this, but [name] hasn’t made a substantive contribution to legal scholarship in two decades or more.)”

    • From Richard Posner: “Although [he/she] is a professor at Harvard Law School, [name] is not a scholar.”

  • Lawyers Behaving Badly

    Friday, June 11, 2004

    Forgive the non-tax related nature of this post, but as one who has been to many law firm and law school retreats, the report of this Scotland law firm retreat gone awry (via lawschool.com) caught my eye:

    One of Edinburgh’s most prestigious legal firms has launched an investigation after trouble flared during a corporate weekend at a luxury timeshare development. It is believed two senior legal staff at top corporate lawyers Dickson Minto have been suspended following a fracas last weekend at the up-market Langdale resort in the Lake District…
    Two senior members of the legal firm began arguing and others became involved. It is claimed by those present that during a series of incidents one male member of staff was headbutted and another punched.

    And to think the most exciting thing I’ve ever done at a retreat is golf!

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