Villanova University School of Law

Conflict of Interest: CISG Article 78 and Post Judgment Interest Statutes

John Y. Gotanda — Fri, 20 Jan 2012 06:42:54 PST

Attorneys' Fees Agonistes: The Implications of Inconsistency in the Awarding of Fees and Costs in International Arbitrations

John Y. Gotanda — Fri, 20 Jan 2012 06:33:44 PST

Increasing Preparer Responsibility, Visibility and Competence

Leslie Book — Fri, 02 Sep 2011 11:47:24 PDT

The insights from the responsive regulation literature present an intriguing model for IRS interaction with preparers, and provide a theoretical context for a more nuanced approach that the IRS could adopt when considering its return preparer strategies. To some extent, the IRS's current emphasis on preparer education, including the significant resources expended on tax forums and other general outreach programs, reflects IRS awareness that its interaction with preparers must take a varied approach. In this paper, I propose a more personal contact paradigm with preparers, with those contacts facilitated by heightened identification requirements and a more dedicated IRS effort to mine preparer data and direct targeted communication and efforts reflective of the data it will capture. The proposed approach will contribute to greater preparer visibility, responsibility and competence, and will ultimately allow for the IRS and preparers to genuinely work together to improve the accurate reporting of information on tax returns, and make it more difficult for preparers to pass on inaccurate information to the IRS. A prerequisite for this type of approach is that the IRS must have sufficient information regarding who the good and who the bad actors are in the return preparation industry. There is a deep need for the IRS to collect information by type of preparer, and have a nuanced understanding of error rates by preparer and by issue, with a healthy dose of qualitative on the ground resources backstopping and contributing to understandings that the numbers suggest. Encouraging good behavior must start with the IRS knowing and acting on information about how certain preparers are interacting with taxpayers. Changing preparer conduct through audits, heightened penalties, and the use of civil injunction proceedings should come only after the IRS encourages more positive steps, and only after the IRS directs disapproval with what it perceives to be improper preparer conduct. Possible legislative change that would require registration and certification of preparers could also help facilitate effective oversight of the preparer community. This possible additional regulation could be the trigger for the IRS to meaningfully track information related to preparers and encourage better behavior, while at the same time keeping its powder dry for the egregious actors who need more traditional sanction-based approaches.

A Response to Professor Camp: The Importance of Oversight in IRS Collection Determinations

Leslie Book — Fri, 02 Sep 2011 11:45:00 PDT

In past writings and in an upcoming article by Professor Bryan Camp, The Problem of Adversarial Process in the Administrative State, 83 IND. L. J. ### (2008), Professor Camp criticizes the procedural protections Congress added in the tax collection process, noting the limitations of adversary proceedings in the IRS's tax collection process. In particular, Professor Camp strongly criticizes the collection due process (CDP) rights that were part of the landmark IRS Restructuring and Reform Act of 1998. Given the size of the tax gap, and likely increasing calls for the IRS to do a better job in reducing that tax gap in light of budget deficits, the question of considering the appropriate use of agency resources is particularly relevant. While much of Professor Camp's argument is persuasive, it comes up short both as a descriptive and prescriptive model. Unquestionably, the IRS's collection process borrows heavily from inquisitorial models of agency action, and given the information asymmetry between the IRS and taxpayers themselves, the agency faces heavy obstacles to consider whether delinquent taxpayers are shirking their responsibilities or are genuinely facing financial hardship and are unable to pay what is due and assessed. But those insights are not sufficient to explain the dynamics of the entire collection process, which is best thought of as involving a range of interests meriting differing levels of procedural protection and personal IRS intervention. In this response, I situate IRS collection determinations within the broader landscape of administrative law, highlight the principles that administrative law scholars have emphasized in considering what is fair agency practice, and apply those principles to the collection context. I conclude that Professor Camp rightfully highlights some of CDP's problems, but misses its benefits and thus fails in prescribing the repeal of CDP. Yet, Professor Camp's article is a significant achievement for those considering tax collection. Its targeting of CDP's shortfalls highlights some of the problems of the legislative process, and allows us to consider how Congress and the IRS can improve collection rights and protect individual interests without sacrificing essential efficiency concerns associated with collecting taxes.

Refund Anticipation and the Tax Gap

Leslie Book — Fri, 02 Sep 2011 11:42:51 PDT

There has been a significant expansion of refundable credits over the past twenty years. This trend is likely to continue as part of federal policy to stimulate the economy and promote non-tax related social benefits. With the growing use of the tax system to deliver refundable benefits to individuals, the tax preparation industry as a whole has become, in some significant respects, a vehicle for cross-marketing of non-tax goods and services. Refund anticipation loans, or RALs, are one example of these non-tax products that paid preparers facilitate for their customers. RALS are short-term loans secured by a taxpayer's anticipated tax refund amount. A taxpayer will borrow against the anticipated refund, and will be required to repay the loan regardless of the size of the actual refund amount. The RAL lender issues the taxpayer the amount of the anticipated refund less any preparation fees, as well as any filing, finance, and processing charges. The IRS refund is then transferred directly to the lender to pay back the loan. RAL customers receive their money between two and six weeks faster than waiting for their refund check. RALs have created a substantial market, with about $900 million in loan-related RAL fees being generated annually. The creation of RALs has opened up a major market niche, with their popularity largely coming with the advent of the IRS's e-filing program, and their use often associated with the receipt of earned income tax credit (EITC)-generated refunds. Over time, RAL providers have come under fire from consumer advocates, elected officials, and IRS officials. The criticisms of RALs have come from two general starting points: 1) a social policy standpoint that draws heavily from general consumer protection concerns, including that RALs compromise taxpayer privacy and unfairly drain away precious tax benefits through fees that are high when computed on an annual percentage basis, and 2) a more targeted tax compliance perspective examining the role that RALS play in contributing to the underreporting aspect of the tax gap. While noting that consumer privacy and general consumer protection concerns are independent bases for further regulation, this essay focuses on the debate over RALs' effect on tax compliance, and its contribution to the tax gap. While RALs are regulated to a limited extent by the IRS and Treasury, the IRS and the National Taxpayer Advocate have raised concerns about whether RALS create incentives for less compliant behavior among preparers who facilitate access to RAL lenders. In 2008 the IRS issued an Advanced Notice of Proposed Rulemaking (ANPR), seeking comments to determine to what degree RALs and other similar products should be further regulated. The rule on which the IRS and Treasury were seeking guidance would prohibit the use of information obtained during the tax preparation process for the purpose of marketing any product. This new rule would, at a minimum, inject additional costs for preparers and consumers and likely limit their use in some way. The question that the IRS raised in its ANPR focused on whether RALs contribute to increased demand for overstated tax refunds. This question itself raises many unanswered questions. For example, does the additional speed in which individuals receive money embolden inappropriate taxpayer conduct? If the answer is yes, assuming practitioners can influence taxpayer compliance decisions, will increased regulation of preparers generally or RALs in particular result in fewer taxpayers willing to misstate facts to generate an improper refund? Do additional profits derived from RALs contribute to preparers' willingness to turn a blind eye to existing due diligence rules? Or even worse, do RALs contribute to conditions where preparers themselves are facilitating the noncompliance through more preparer-generated noncompliance efforts? These questions highlight the lack of information that hampers policymakers in designing effective measures to reduce the tax gap. Until the IRS generates quantitative data that identifies, for example, preparer types and correlates error rates with types of preparers, and generates studies comparing error rates among preparers offering RALs as compared with non RAL-seeking taxpayers, it is difficult to justify taking measures that may effectively limit RALs on compliance reasons alone. This essay argues that in addition to the importance of additional research relating to preparers to backstop heavy-handed regulatory efforts, the IRS should broadly consider the insights from responsive regulation, and in particular consider ways to encourage preparers to self-regulate. Self-regulation allows the IRS to preserve scarce compliance resources for egregious actors. The focus on RALs in this essay allows for a further inquiry into the special role that preparers play in our tax system, and reflects the possibility that meaningfully working with the preparer community can be a means to reducing the tax gap in the thorny area of refundable credits.

Stories About Science in Law: Literary and Historical Images of Acquired Expertise

David S. Caudill — Tue, 23 Aug 2011 07:52:09 PDT

Presenting examples of how literary accounts can provide a supplement to our understanding of science in law, this book challenges the view that law and science are completely different. It focuses on stories which explore the relationship between law and science, especially cultural images of science that prevail in legal contexts. Contrasting with other studies of the transfer and construction of expertise in legal settings, this book considers the intersection of three interdisciplinary projects: law and science, law and literature, and literature and science. Looking at the appropriation of scientific expertise into law from these perspectives, this book presents an original introduction into how we can gain insight into the use of science in the courtroom and in policy and regulatory settings through literary sources.

Who Are Refugees?

Matthew J. Lister — Tue, 16 Aug 2011 10:20:43 PDT

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as "refugees," and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped “in place”, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition.

IP and Entrepreneurship in an Evolving Economy: A Case Study

Michael Risch — Sat, 16 Jul 2011 08:45:19 PDT

What if you built an intellectual property clinic and hardly anyone came? This brief book chapter is a case study of the first two years of a new entrepreneurship law clinic in an evolving economy: West Virginia. While the clinic had entrepreneurial clients, those clients had developed little intellectual property.

This chapter takes a closer look at the chicken-and-egg problem of knowledge development in an evolving economy, and concludes that law clinics can only support IP growth - they cannot create it on their own. The chapter then generalizes from the experience to suggest ways that law clinics can support their entrepreneurial communities while assisting in intellectual property growth.

The chapter and book are part of the Creativity and the Law series.

On Aristotle's Wide Applicability

Robert T. Miller — Tue, 07 Jun 2011 16:14:00 PDT

Waiting for St. Vladimir

Robert T. Miller — Tue, 07 Jun 2011 16:01:05 PDT

Alasdair MacIntyre believes that the Aristotelian, virtue-theoretic morality he supports is incompatible with the economic arrangements of capitalism. In this brief article, I show that MacIntyre's main arguments for this thesis are based on discredited theories from Marx, not Aristotle, and that the arguments MacIntyre that gives that really are based on Aristotelian, virtue-theoretic notions all fail.