Vol. 64, No. 4 - Summer 2011

Taxation

O Preemption, Where Art Thou?: ERISA's Lost State and Local Tax Preemption

Mark F. Sommer, Mark A. Loyd, and Jennifer Y. Barber

The Employee Retirement Income Security Act of 1974 (ERISA) is a comprehensive statute that provides exclusive federal oversight of employee benefit plans and promotes the interests of employees...

Taxation

Taxing Internet Sales: Trying to Make a Two-Thousand-Year-Old Jurisdiction Test Work in the Dot-Com Economy

H. Beau Baez III

Most people have purchased merchandise over the Internet believing that they were buying it tax-free—in practice true, but legally mistaken. Between 2008 and June 2011, Arkansas, Colorado, Illinois...

Taxation

Untangling Substantial Nexus

William Joel Kolarik II

The dormant Commerce Clause is the most important and controversial federal limitation on state and local taxation. In 1977, the United States Supreme Court’s opinion in Complete Auto Transit v. Brady...

Taxation

The Unintended Consequences of Gross Receipts “Taxes”

Kathleen K. Wright

A gross receipts tax is a levy on a business entity’s total receipts that is typically assessed in lieu of an income tax. Gross receipts taxes are assessed on a broader base and at a lower rate than income taxes. ...

Taxation

Does the California Governor’s Enterprise Zone Proposal Pass Constitutional Muster: An In-Depth Look at Federal Due Process Restrictions on State Enacted Legislation that Eliminates Carryforward Tax Credits

Vikram Agarwal

In late 2007, the United States suffered a historic collapse in the financial and real estate markets. The resulting economic downturn that created nationwide economic distress has infected the financial stability of many states. ...

Taxation

Heads Up! Recent Federal and State Attempts to Address Nonresident Income Taxation Perpetuate Selective Enforcement and Unfairness of the “Jock Tax”

Steven Pahuskin

On July 8, 2010, NBA star LeBron James, formerly of the Cleveland Cavaliers, insulted the State of Ohio, the City of Cleveland, and its residents on national television by announcing that he was “tak[ing] [his] talents to South Beach.” ...

Taxation

Virginia Historic Tax Credit Fund 2001 LP v. Commissioner: Virginia Is for Partners?

James W. Hahn

In Virginia Historic Tax Credit Fund 2001 LP v. Commissioner, the Service disputed the tax treatment of certain transactions between a partnership and its investors. ...

Taxation

The Scoop on the Unitary Business Principle: How Blue Bell’s Corporate Restructuring Increased the Scope of Out-of-State Taxation in Blue Bell Creameries, LP v. Roberts

Stuart R. Harding

The recent decisions issued by the Supreme Court on the scope of the unitary business principle are illustrative of the expanding power that a state has to tax a corporate entity’s out-of-state earnings. ...

Taxation

Clear, Voluntary, and Made in Good Faith: An Alternative to the Supreme Court’s Incorrect Approach to Resolving Conflicts Between Common Law Waivers and ERISA Plan Documents in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan

Geoff Ward

Considering the high divorce rate in the United States, the traditional, romanticized story of marriage is becoming the exception rather than the rule. Although it may not be immediately apparent...

Index to Volume 64

ABA Section of Taxation

This index includes articles, committee reports, student notes, and miscellaneous items that appear in volume 64 of The Tax Lawyer.