[NOTE: This explainer has been updated to reflect Senate passage of the CARES Act.]

What’s the issue? Covid-19 poses a particularly serious health risk to elderly and immunocompromised individuals. Many of the most vulnerable individuals rely largely on relatives and Social Security benefits for financial support. Covid-19 imposes a range of new burdens on these individuals and their families. …

Probably not. But it’s not an implausible argument. And Congress should act fast to fix an apparent glitch in the tax code

As the Wall Street Journal’s Richard Rubin reported this morning, a provision tucked into a December 2019 appropriations bill could mean that no one in the United States needs to pay any income, estate, gift, employment, or excise tax — or file any income, estate, gift, employment, or excise tax return — until 60 days after the covid-19 emergency is over. This is an important story and excellent reporting. The implication is not, though, that we all can stop paying taxes until the virus is gone.

To understand the controversy, it’s necessary to refer to the current text of I.R.C. § 7508A. (Warning: This all gets very lawyerly very fast.) Subsection (a) of that statute has been in place, with minor amendments, since 1997. …

Don’t discriminate against kids. Don’t impose income floors or ceilings. And set a monthly amount that we can sustain

This post is co-authored with Miranda Perry Fleischer, Professor of Law and Co-Director of Graduate Tax Programs at the University of San Diego School of Law. Follow her on Twitter: @mirandaperrygrl. Recommendations are based on our co-authored article, “The Architecture of a Basic Income,” which will appear in the University of Chicago Law Review this spring.

With millions of Americans likely to lose their jobs or see their incomes plummet as a result of the Covid-19 outbreak, the Trump administration and lawmakers from both parties have proposed to soften the virus’s economic blow by providing cash assistance directly to U.S. households. …

Imagine this: A multimillionaire private equity investor in New York transfers interests in one of his private equity funds to a trust and appoints as his trustee an attorney who lives in Connecticut. The beneficiaries of the trust are his adult daughter and her three children (his grandchildren), who live in North Carolina. The terms of the trust allow the Connecticut attorney to decide when to distribute money or other trust property to the daughter and the grandchildren, but he can’t distribute the money to anyone else. …

The Treasury secretary thinks he is “not authorized” to hand over Trump’s tax returns. Why would that be?

Almost no one was surprised when Treasury Secretary Steven Mnuchin said today that he will not comply with the House Ways and Means Committee’s subpoena for President Trump’s tax filings. Mnuchin already had made clear that he believes he is under no obligation to hand over those documents to House members. But there was something puzzling about Mnuchin’s letter in response to the Ways and Means Committee’s subpoena — something that even Mnuchin’s defenders will have a difficult time justifying.

“In reliance on the advice of the Department of Justice, we have determined that the Committee’s request lacks a legitimate legislative purpose, and pursuant to section 6103, the Department is therefore not authorized to disclose the requested returns and return information,” Mnuchin wrote. The emphasis is mine, not Mnuchin’s: the Treasury secretary does not randomly press control-B when writing memos, unlike his boss, who does randomly hit CAPS LOCK when writing tweets. (More accurately, and to give credit where credit is due, the emphasis is Steve Rosenthal’s, who tipped me off to this intriguing issue when similar language appeared in Mnuchin’s May 6 letter to House Ways and Means chairman Richard Neal.) …

What Trump’s lawyer’s letter gets right — and wrong

President Trump’s personal attorney, William Consovoy, sent a letter to the Treasury Department’s general counsel on Friday arguing that House Ways and Means Chairman Richard Neal “cannot legally request — and the IRS cannot legally divulge” — the president’s tax returns. The letter gets a couple of things right and other things very wrong.

First, Consovoy is correct that 26 U.S.C. § 6103(f), the once-obscure 1924 statute that everyone is now talking about, does not resolve the present controversy. Section 6103(f) says that upon written request from the House Ways and Means chair or his Senate Finance Committee counterpart, the Treasury secretary “shall furnish such committee with any return or return information specified in such request.” …

An annual wealth tax quite likely would have to be apportioned among the states — at least in part. But that’s not necessarily a fatal flaw. And anyway, we don’t need an annual wealth tax in order to tax wealth

Elizabeth Warren, the senior Democratic senator from Massachusetts and now a candidate for her party’s 2020 presidential nomination, has proposed an annual wealth tax of 2% on households with a net worth of at least $50 million, rising to 3% for households with a net worth of at least $1 billion. Quite a few commentators have questioned whether Warren’s proposed tax would run afoul of the constitutional requirement that any “direct tax” be apportioned among the states on the basis of population. …

The department’s arguments for inaction don’t pass muster

[John R. Brooks is a professor of law at the Georgetown University Law Center. Follow him at @jakebrooksGULC. Cross-posted at the Student Borrower Protection Center’s blog.]

Hundreds of thousands of student borrowers, including 42,000 veterans, qualify to have their student loans cancelled because of a total and permanent disability (TPD). Yet few eligible borrowers take advantage of this benefit, in part because they have to actually ask for it. The Department of Education (ED) knows who these disabled borrowers are and could automatically discharge their loans today, but it has refused to do so even in the face of years of Congressional pressure. Instead, more and more disabled borrowers go into default or see their disability benefits offset to pay back their loans. This is bad enough for most disabled borrowers, but is particularly cruel to disabled veterans, whose inability to afford their student loans is precisely because of their service to the country. …

Justices should ascend to the bench when the president who appointed them leaves office

The idea of term limits for Supreme Court justices is attracting ever more attention, sparked in part by the bitter fight over Judge Brett Kavanaugh’s confirmation. The most common version of the idea is to limit justices to 18-year terms, with one member of the court being replaced every two years. It’s not a new idea, and I think it’s a step in the wrong direction. Rather than cutting short the terms of Supreme Court justices, we should delay their start.

Congress could reduce the politicization of Supreme Court confirmation battles and bolster the court’s independence by inserting a time lag between the date of confirmation and the date that a justice takes the bench. The best way to do this would be to specify that a Supreme Court justice’s term will not begin until the president who appointed her leaves office. This would mean that President Obama’s appointees, Sonia Sotomayor and Elena Kagan, would have joined the Court on January 20, 2017, the day that Obama left the White House. If Donald Trump is a one-term president, his appointees (i.e., …

How confident must we be that allegations of sexual misconduct are true before we impose consequences on the accused? This question is central to the debate over the confirmation of Supreme Court nominee Brett Kavanaugh; it’s also highly relevant to the Education Department’s effort to write new rules under Title IX for handling sexual misconduct claims on college campuses. The answer to the question will no doubt depend on the severity of the contemplated consequences. Nonetheless, a few observations apply across the different contexts in which similar questions arise.

For anyone who is thinking deeply about this issue, the best place to start is (I think) Louis Kaplow’s 2012 Yale Law Journal article “Burden of Proof.” Kaplow’s article doesn’t directly address sexual misconduct claims, but his analytical framework applies — with a few modifications — to the Kavanaugh confirmation and the Title IX rules. So start there before reading on. (The article is 122 pages, so this probably requires signing off Twitter and closing a few browser windows first.) …

About

Daniel Hemel

Assistant Professor; UChicago Law; teaching tax, administrative law, and torts

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