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May 6, 2009

Do we need "statutory interpretation for tax laws"?

There's an interesting piece on ssrn that is also published. The abstract:

This Article analyzes the meaning of probability statements in tax law and in scholarship addressing civil tax penalties. Specifically, the Article draws on economics and the philosophy of mathematics to argue that because tax law is substantively uncertain, some probability statements in tax law are best understood as a reflection of the speaker's belief, rather than as a description of the number of times a given event will occur over the long run out of the number of times that it could occur. That is, these tax probability statements are best understood using a subjectivist interpretation of probability, rather than frequentist interpretation. Prior work in tax law scholarship in particular, and law and economics in general, has glossed over or misunderstood this crucial distinction. 

Understanding that probability statements in tax law should be given a subjectivist interpretation changes both the theory and the practice of tax compliance. First, because tax probabilities represent beliefs, different parties - for example, Congress (the penalty-setter) on the one hand, and taxpayers on the other - may have different perceptions of the chances that a given transaction is permissible, and economic models should reflect these possibly disparate beliefs. Second, a subjectivist interpretation of tax probabilities provides additional support for stringent and much-criticized laws that regulate the substance of tax advisors' written opinions, as these strict rules may actually help tax advisors arrive at more accurate, less biased estimates of the chance that a tax position would be upheld by a court. And finally, a subjectivist interpretation suggests that lawmakers should be cautious of reducing tax law's uncertainty. If, as empirical work suggests, some taxpayers have an aversion to uncertainty, the uncertainty associated with whether certain questionable transactions are permitted (aside from any penalties imposed if transactions do turn out to be forbidden) may itself reduce the number of taxpayers who engage in these transactions.

Probably? Understanding Tax Law's UncertaintySarah B. Lawsky George Washington University - Law School.  Apparently it's been published in the U Penn L Rev.

Interesting. I wonder if it is sort of a contextual argument, rather than anything radical?  I don't know enough about tax laws to know (or care, I admit!).

Tip o' the hat to Ted McClure at Phoenix for spotting it.

May 6, 2009 in Sports | Permalink | Comments (0) | TrackBack

May 4, 2009

If a Whistleblower reports wrong-doing to the agency he works for, is that reporting it to "any other agency" under the Kentucky Whistleblower Act?

Yes, according to the majority in Workforce Dev. Cab. v. Gaines, 276 S.W.3d 289 (Ky. 2008)

The statute provided:


No employer shall subject to reprisal, or directly or indirectly use,
or threaten to use, any official authority or influence, in any
manner whatsoever, which tends to discourage, restrain, depress,
dissuade, deter, prevent, interfere with, coerce, or discriminate
against any employee who in good faith reports, discloses,
divulges, or otherwise brings to the attention of the Kentucky
Legislative Ethics Commission, the Attorney General, the Auditor
of Public Accounts, the General Assembly of the Commonwealth of
Kentucky or any of its members or employees, the Legislative
Research Commission or any of its committees, members or
employees, the judiciary or any member or employee of the
judiciary, any law enforcement agency or its employees, or any
other appropriate body or authority, any facts or information
relative to an actual or suspected violation of any law, statute,
executive order, administrative regulation, mandate, rule, or
ordinance of the United States, the Commonwealth of Kentucky, or
any of its political subdivisions, or any facts or information relative
to actual or suspected mismanagement, waste, fraud, abuse of
authority, or , a substantial and specific danger to public health or
safety. No employer shall require any employee to give notice
prior to making such a report, disclosure, or divulgence.

KRS 61 .102(1) (emphasis added).

The state argued that ejusdem generis limited the phrase to agencies like those before it -- with investigatory powers -- and excluded others.  The majority, relying largely on general absurdity canons and policy arguments, construed the statute liberally; the dissent argued that the case foretells the tend of ejusdem generis in Kentucky...

May 4, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack