Author Archives: maxelmoreland

PROPOSED REGULATIONS TO CERTAIN LAPSING RIGHTS AND RESTRICTIONS UNDER INTERNAL REVENUE CODE §2704

Author: Ryan Kenny, Associate Member, University of Cincinnati Law Review

An important component of estate tax planning concerns the transfer of family business interest from one generation of business owners to the next. For small family-owned businesses in partnerships and close corporations, it can be important to keep control of the enterprise within the family.

However, transfers of business interests from family member to family member via an estate plan provided opportunities for taxpayers to circumvent the purpose of estate planning and tax laws in ways that were never intended. Wealthy families were able to prevent taxation of larger amounts of wealth with careful tax planning.

In 1990, Congress sought to close the estate freezing loopholes by enacting Internal Revenue Code (Code) §§2701 – 2704.[1] The purpose was to prevent the seemingly arbitrary valuations of interests transfers between holders of interests in entities to their family members. However, as tax planners, taxpayers, and state legislatures combined to affect the regulations of Code §2704 and the corresponding state law provisions contained therein, the provision, along with the other anti-freeze provisions, became “effectively toothless.”[

In response, the Internal Revenue Service issued proposed regulations to strengthen the regulations for lapsing liquidation rights to determine the value of transferred interests in partnerships for estate, gifts, and generation-skipping transfer (GST) tax purposes.[3] This analysis addresses the current regulations under Code §2704, and the proposed amendments. Continue reading

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THE COMMERCE CLAUSE AND STATE TAXATION OF INACTIVITY

Author: Ryan Kenny, Associate Member, University of Cincinnati Law Review

In 2012, the United States Supreme Court heard National Federation of Independent Business et al. v. Sebelius, the landmark decision regarding the Affordable Care Act.[1] One of the primary issues in the case was the individual mandate requiring individuals to purchase health insurance, or face a fine.[2] While the Court upheld the fine as a legitimate exercise of Congress’s power to tax[3], the Court held that Congress could not mandate commercial activity, as this was outside the scope of the powers granted under the Commerce Clause of the United States Constitution[4]. The Court held that Congress could not compel “individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.”[5]

This raises the issue of states’ ability to tax inactivity in a similar manner as the federal government.[6] One possible interpretation from Sebelius is that under the principles of federalism, there are no Commerce Clause limitations on the states in their power to tax inactivity, since the Commerce Clause does not grant Congress the power to regulate inactivity. Another interpretation is that even though the Commerce Clause may not permit Congress to compel commercial activity, state taxes that have the same objective may nevertheless have to satisfy the test of the Dormant Commerce Clause as outlined in case law. In order to prevent the type of protectionist policies for which the Commerce Clause was enacted, the Dormant Commerce Clause must have effect on states’ ability to tax inactivity.

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Judicial Barriers: Why the Supreme Court Should Not Impose an Additional Requirement on Rule 24 Intervenors

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

The Federal Rules of Civil Procedures were enacted to “secure the just, speedy, and inexpensive determination of every action and proceeding.”[1] Pursuant to these rules, the federal courts possess a duty to exercise authority in a way that all cases will be resolved fairly. Unfortunately, rules that are ambiguous or not clearly defined can be interpreted in many different ways by these courts, causing confusion and variations of legal standards. When this occurs, it is the duty of the Supreme Court to resolve these issues and allay any doubt about what rule, standard, or interpretation governs.

The Supreme Court recently granted certiorari in a land dispute case to answer the underlying question of what the proper standard is for a party moving to intervene in a case.[2] The District Court held that the moving party could not intervene because it lacked proper Article III standing under the United States Constitution.[3] However, the Second Circuit overturned the District Court’s decision, holding that “there is no need to impose the standing requirement upon a proposed intervenor where the existence of a case of controversy has been established in the underlying litigation.”[4] In so ruling, the Second Circuit joined six other circuits in interpreting the Federal Rules to not require Article III standing. However, three other circuit courts have consistently held that Article III standing is required and will deny a moving party the right to intervene if it cannot show it possesses standing. It is this type of unjust and unfair outcomes that the Federal Rules were enacted to prevent. Granting certiorari in Laroe Estates, Inc. v. Town of Chester, the Supreme Court will soon have a chance to remedy the confusion among the courts. Continue reading

Who is a Whistleblower?

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

The 2008 financial crisis was a defining moment in American history as millions of people lost their jobs and wages stagnated. The 2008 financial crisis may well have been the catalyst for the election of President Obama in 2008. In response to the devastation of the financial crisis, Congress passed the Dodd Frank Act to reform the financial regulatory system.[1] One component of this comprehensive of legislation was protection to whistleblowers who reported violations of U.S. securities laws to the Securities and Exchange Commission (SEC).[2] “The term “whistleblower” means any individual who provides, or [two] or more individuals acting jointly who provide information relating to a violation of securities laws to the [Securities and Exchange] Commission . . . .”[3] The Fifth and Second Circuits have recently confronted whether an individual who is not a whistleblower under the statutory definition of the term is entitled to protection from the relevant section. The Fifth Circuit held a “whistleblower” who is not reporting a SEC violation is not entitled to this protection.[4] However, the Second Circuit ruled a whistleblower reporting non-SEC violations may seek protection under this statutory provision.[5] The Fifth Circuit’s approach is the correct one because it applied the plain meaning of the statute and avoids breaching the essential principles of the separation of powers.  Continue reading

Outlook and Gmail Encounter the SCA

Meg Franklin, Associate Member, University of Cincinnati Law Review

Under the Stored Communications Privacy Act (“SCA”), the government may only obtain electronic communication through a lawful search warrant.[1]  Yet, two recent cases illustrate the weakness of the SCA.  When the SCA was passed in 1986, it specifically addressed technology that existed at the time.  However, as the cases illustrate, its application can lead to absurd results in today’s era of global digital communications.  Since the SCA can only govern search warrants within the United States, the absurdity results from determining whether the data is stored and transmitted domestically or extra-territorially. The distinction can be absurd because modern-day electronic communication companies have many options when structuring their data storage practices. Yet, under the current interpretation of the SCA, these business decisions may conclusively determine the SCA’s application. Continue reading

Email Boilerplate as Notice under Rule 26(b)(5)(B)

Meg Franklin, Associate Member, University of Cincinnati Law Review

In Harleysville Ins. Co. v. Holding Funeral Home, an electronic confidentiality notice was not strong enough to protect attorney-client privilege.[1] The court held that the attorney-client privilege was effectively waived because counsel failed to take “reasonable steps to prevent [the privileged information’s] disclosure or to rectify the situation.”[2] Yet, the opposing counsel’s use of the privileged information resulted in court sanctions.[3] The court found that the defense counsel had acted contrary to rules of ethics and civil procedure.[4] Most notably, a confidentiality notice contained in an email served as notice under Fed. R. Civ. P. 26(b)(5)(B).[5] This holding, while effectively punishing the defense counsel’s unethical behavior, is contrary to general understanding of Rule 26(b)(5)(B). Continue reading

The Protestor Plow: A Legislative Attempt

Adam Pitchel, Associate Member, University of Cincinnati Law Review

The First Amendment protects the freedom to express oneself through conduct.[1] Protests, rallies, and demonstrations typically bring together many people to collectively espouse their views and enhance the overall force of their message. However, the freedom of expression and by extension, the freedom to protest, is limited and subject to restrictions.[2] Regulations that constrain the freedom of speech are subject to intense scrutiny and usually implemented to protect public safety.[3] In these cases, legislators and judges must balance free speech rights against the possible consequences of that speech. Recently, protestors opposing the Dakota-Access Pipeline (DAP) obstructed several of the roads across the state and delayed traffic for several hours.[4] People have engaged in similar types of protests around the country for various reasons.[5] In response, the North Dakota Legislative Assembly introduced H.B. 1203, which states “notwithstanding any other provision of law, a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages.”[6] State lawmakers have cited emergency concerns, traffic safety, and public orderliness as motivations for drafting this piece of legislation.[7] Unfortunately, this bill was poorly drafted and failed to adequately balance expressive conduct against public safety considerations. Continue reading

Material Falsehoods and Denaturalization  

 

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

Immigration currently dominates the national conversation as President Trump’s travel ban and plans to build a wall on the south border have captured the attention of the nation. The immigration debate captures the attention of the nation because America has often been described as a nation of immigrants. Amidst this contentious debate, hundreds of thousands of people from around the world seek entry in to this country.[1] In the fiscal year of 2015, the United States naturalized 729, 995 people.[2] One issue that occurs in this process is when persons applying for naturalization lie on their applications in order to secure naturalization. The Immigration and Naturalization Act (INA) addresses this issue: “Whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person … [s]hall be fined not more than $5,000 or, imprisoned not more than five years, or both.[3] However, the Sixth and Ninth Circuits have disagreed about whether this statutory language requires a “material falsehood” in order to denaturalize a person. The Ninth Circuit found this statutory language required a showing by the government that the falsehood was materially false.[4] Alternatively, the Sixth Circuit held this language did not require a material falsehood in order to denaturalize a person.[5] The Sixth Circuit holding was the better decision because it better protects our nation from potential threats, while ensuring the protection of constitutional liberties. It also respects the proper role of the courts when interpreting statutes. Continue reading

ANALYZING THE BENEFITS AND DRAWBACKS OF TWO STRUCTURES OF A POTENTIAL CARBON TAX IN THE UNITED STATES

Ryan Kenny, Associate Member, University of Cincinnati Law Review

Imagine two people riding on a bus, Jim and Jane. Jim is enjoying a bag of potato chips during his commute. However, the loud crunching of the chips annoys Jane, who just wants to enjoy her book. The question is: did the monetary cost of the potato chips to Jim accurately reflect the additional, negative cost of annoying Jane? Economists refer to this as a negative externality; the cost suffered by a third party in a transaction between two other parties.[1] One proposed solution to capturing this additional cost is a Pigovian tax, applied to the transaction to accurately capture the actual cost of the transaction.[2] One type of a Pigovian tax is a carbon tax, applied to carbon-emitting transactions and industries to reflect environmental costs that are not typically represented in the cost to producers and consumers of products. Recently, some respected members and former civil servants in the Republican party have suggested replacing the Obama administration’s environmental regulations with a carbon tax.[3] The Department of the Treasury’s Office of Tax Analysis (OTA) wrote a working paper (Paper) on how such a tax could be implemented: using either an upstream or midstream approach, or a combination of both.[4]  Continue reading

Risky Business and Identity Theft

Adam Pitchel, Associate Member, University of Cincinnati Law Review

Identity theft has developed into a serious concern for most people in the 21st century.[1] Criminals’ ability to open fraudulent accounts, make purchases, and tamper with people’s credit history has drastically increased the importance of protecting private information. Companies responsible for preserving and protecting this information have occasionally failed to do so, resulting in breaches and possible theft of personal data.[2] When these incidents occur, the risk of identity theft increases significantly.[3] There remains a question of whether the risk of future identity theft creates enough harm to sustain a civil claim. Currently, circuit courts are divided over this issue. The Sixth, Seventh, and Ninth Circuit Courts have held that an increased risk of identity theft is sufficient to justify a claim.[4] In contrast, the First, Third, and Fourth Circuits have held that an increased risk of identity theft is not a sufficient injury to warrant a lawsuit.[5] The approach used by the Sixth, Seventh, and Ninth Circuits is simpler and better comports with the requirements of Article III of the Constitution. Continue reading