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The Games They Will Play: An Update on the Conference Committee Tax Bill

30 Pages Posted: 28 Dec 2017  

Reuven S. Avi-Yonah

University of Michigan Law School

Lily L. Batchelder

New York University School of Law

J. Clifton Fleming Jr.

Brigham Young University - J. Reuben Clark Law School

David Gamage

Indiana University Maurer School of Law

Ari D. Glogower

Ohio State University (OSU) - Michael E. Moritz College of Law

Daniel Jacob Hemel

University of Chicago - Law School

David Kamin

New York University School of Law

Mitchell Kane

New York University (NYU)

Rebecca M. Kysar

Brooklyn Law School; Fordham University School of Law

David S. Miller

Proskauer Rose LLP

Darien Shanske

University of California, Davis - School of Law

Daniel Shaviro

New York University School of Law

Manoj Viswanathan

University of California Hastings College of the Law

Date Written: December 18, 2017

Abstract

Earlier this month, we posted a report identifying key weaknesses in the Senate and House tax legislation, titled the Tax Cuts and Jobs Act (TCJA). Based on the conference bill released last week, this report updates our analysis describing some of the major games, legal roadblocks, and glitches in the legislation. This represents the continued work of a group of legal experts from across the country. Unfortunately, while the conference bill addressed some of the issues we described in our earlier report, others were made worse, and the bill introduces fundamental—and in our view insurmountable—structural problems to the income tax. Thus, the legislation is still likely to cost more than the current estimates of over $1 trillion, to advantage the well-advised (and their advisors) playing tax games in ways that are both deliberate and inadvertent, and to face legal roadblocks like WTO non-compliance that could undermine key components of the legislation. Finally, the bill still has glitches that could lead to haphazard and unexpected results that could arbitrarily favor or penalize taxpayers.

Keywords: Tax, Legislation, Tax Planning, Reform, Loopholes, Tax Cuts and Jobs Act (TCJA)

JEL Classification: K34

Suggested Citation

Avi-Yonah, Reuven S. and Batchelder, Lily L. and Fleming, J. Clifton and Gamage, David and Glogower, Ari D. and Hemel, Daniel Jacob and Kamin, David and Kane, Mitchell and Kysar, Rebecca M. and Miller, David S. and Shanske, Darien and Shaviro, Daniel and Viswanathan, Manoj, The Games They Will Play: An Update on the Conference Committee Tax Bill (December 18, 2017). Available at SSRN: https://ssrn.com/abstract=3089423

Reuven Avi-Yonah

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-4033 (Phone)

Lily Batchelder

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-992-8156 (Phone)

J. Clifton Fleming

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

David Gamage

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

HOME PAGE: http://www.law.indiana.edu/about/people/bio.php?name=gamage-david

Ari Glogower

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Daniel Hemel

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

David Kamin (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Mitchell Kane

New York University (NYU) ( email )

Bobst Library, E-resource Acquisitions
20 Cooper Square 3rd Floor
New York, NY 10003-711
United States

Rebecca Kysar

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Fordham University School of Law ( email )

113 West 60th Street
New York, NY 10023
United States

David Miller

Proskauer Rose LLP ( email )

Eleven Times Square
New York, NY 10036-8299
United States

Darien Shanske

University of California, Davis - School of Law ( email )

400 Mrak Hall Dr
Davis, CA CA 95616-5201

Daniel Shaviro

New York University School of Law ( email )

40 Washington Square South
Room 314-B
New York, NY 10012-1099
United States
212-998-6187 (Phone)
212-995-4341 (Fax)

Manoj Viswanathan

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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