Manufactured Factual Indeterminacy and the Globalisation of Tax Jurisprudence

In this article the ‘manufactured’ factual indeterminacy now ubiquitous within the practice of international taxation is presented as a result of intersecting global approaches to the theory of law. It is argued that tax law practice assumes a mixture of the theoretical positions averred by Hans Kelsen, Karl Llewellyn, and Ronald Dworkin. To combat the problems raised by this, a ‘Soft Realism’ approach is proposed in the application of tax heuristics to deal with cases of factual indeterminacy. Drawing some implications from this analysis, the debate over general anti-avoidance rules and complex tax avoidance strategies (eg ‘treaty-shopping’ and ‘double non-taxation’) is oriented within the overall framework of tax jurisprudence. Finally, it is argued that the globalisation of tax jurisprudence has enabled accounting firms to actively spread manufactured factual indeterminacy around the world, corrupting the purpose of the law in part by exploiting the weaknesses of formalistic legal interpretation

A Challenge to the Libertarian Challenge

The “Libertarian Challenge” to redistributive taxation is given as the syllogism: Property is justified; taxes reduce property; therefore, redistributive taxation is unjustifiable. In this article, a challenge to the Libertarian Challenge is presented via the simple rejection of such Libertarian definition of money as entirely equivalent to property. The value of money is shown to be relative based on the holder. For example, the wealthy accumulate money for-exchange while the poor apply money for-use. Thus, to the wealthy money yields a “positional preference” in terms of the total accumulated amount relative to other wealthy persons. Taxes do generally oppose such accumulations just as stated in the Libertarian Challenge. However, a form of redistributive taxation could be applied which would levy tax yet maintain such “positional preference” of the wealthy vis-à-vis one another in terms of total money accumulations. This approach defeats the Libertarian Challenge because the tax is paid proportionately out of money accumulations. Such approach also yields a Pareto optimal result where money is transferred to the poor but no wealthy person is made worse off on a relative basis

Are Handguns a Matter of Privacy?

The thesis developed in this Article is that the Heller and Bruen cases involved primarily right-to-privacy concerns. By its terms, the Second Amendment involves the collective right to bear Arms in connection to regulated militia service and does not mention handguns. Handguns were not “ordinary military weapons” employed by a militia at the time of the American revolution under the originalist view. The Ninth and Fourteenth Amendments are more appropriate sources for an individual privacy right related to the possession of handguns for private purposes, such as for self-defense or suicide. However, a prohibition of handguns under this approach would entail legal scrutiny that both the Heller and Bruen decisions were obviously meant to avoid. Suicide, the most likely causal outcome of owning a handgun, also seems to be a matter of privacy where the privacy right to choose a handgun for suicide might be balanced against the rights of other person

Are Handguns a Matter of Privacy?

The thesis developed in this Article is that the Heller and Bruen cases involved primarily right-to-privacy concerns. By its terms, the Second Amendment involves the collective right to bear Arms in connection to regulated militia service and does not mention handguns. Handguns were not “ordinary military weapons” employed by a militia at the time of the American revolution under the originalist view. The Ninth and Fourteenth Amendments are more appropriate sources for an individual privacy right related to the possession of handguns for private purposes, such as for self-defense or suicide. However, a prohibition of handguns under this approach would entail legal scrutiny that both the Heller and Bruen decisions were obviously meant to avoid. Suicide, the most likely causal outcome of owning a handgun, also seems to be a matter of privacy where the privacy right to choose a handgun for suicide might be balanced against the rights of other person

A Philosophy Toolkit for Tax Lawyers

Philosophy functions as a tool for tax lawyers.The various schools of philosophy are akin to a toolkit with different tools suited for differing projects where the more tools the tax lawyer knows how to use, the more effective he or she will be in the practice of tax law. This paper accordingly sets out to provide a systemization of philosophy relevant to tax law in the areas of Moral Philosophy, Legal Philosophy, Law and Economics, Philosophy of Science, Philosophy of Mind, Philosophy of Language, and Critical Legal Studies. A summary is provided of each followed by a discussion of prior applications to taxation along with its most cogent critique. With this mapping of philosophical thought, tax lawyers might be better positioned to apply philosophy to tax law in various future contexts. Also, prior criticisms of philosophy as applied to law as intellectual voyeurism” or unwarranted “brilliance” are revealed as forms of doctrinal authoritarianism. Prior criticisms of interdisciplinary research in law, including those by the Chief Justice, are also addressed

Will Robots Agree to Pay Taxes? Further Tax Implications of Advanced AI

An initial policy concern from rapid automation was that if robots continue to substitute for human workers, then a fiscal policy crisis may result as tax revenues decline during a period of rapid automation. That first problem arises because the tax system has been intentionally designed not to tax capital assets, such as robots, or at least not to tax them to the same degree as human labor. A second problem also exists: advanced artificial intelligence (“AI”) may soon have the ability to engage in factual structuring as a means of direct tax avoidance. This direct tax avoidance planning by advanced AIs could further erode tax receipts because an advanced AI also has the potential to formulate its own version of “social norms” in respect of tax compliance. Furthermore, an alternative method to tax ideology to formulate tax policy may also arise from AI referred to here as “tax actualing,” where an advanced AI with a sufficient set of data in respect of cash flows through the economy uses data to make accurate predictions and to thereby supersede current methods of economic modeling. Various critiques of proposals for robot taxation are also addressed here including supposed: (1) productivity losses on taxing robots, (2) additional complexity inherent to all of the robot tax proposals, (3) difficulty in identification of “robots” as capital, and (4) inability to capture benefits from capital assets. Finally, an advanced AI is likely to prefer a tax system which maintains its ability to obtain tax deductions for incremental capital investment. Since higher income tax rates are strongly associated with rapid economic growth in nearly all human societies—past, present, and by all indications, future—it is likely that artificial intelligences will voluntarily choose to assess income taxes upon themselves at high rates as a means to encourage capital re-investment

Will Robots Agree to Pay Taxes? Further Tax Implications of Advanced AI

Will Robots Agree to Pay Taxes? Tax Ideology meets Advanced AI Brett N. Bogenschneider, PhD, JD, LLM Assistant Prof. Accounting & Taxation* Introduction a. Should robots pay taxes? Or, Will robots agree to pay taxes? b. Positing advanced AIs will engage in tax structuring (manipulation of the tax base) *Explanation of preference for income tax systems due to automatic efficiency gains therefrom c. Positing “tax actualing” by advanced AIs will supplant current methods of economic modelin

Epistemology in Heterodox Economics?

The epistemology of Heterodox Economics has been described as a type of methodological pluralism where its relativism is taken as consistent with new versions of science. However, methodological pluralism has severe drawbacks as a means of inquiry. Whereas Economics is often understood in positivist terms as a closed set, Heterodox Economics includes additional concepts and methods. As an open set of ideas, Heterodox Economics is a means to doubt or to not-know and comprises Einfühlung or the creative intuition for the introduction of new ideas into the epistemology of Economics

Empirical Evidence on Robot Taxation: Literature Review and Technical Analysis

The literature on robot taxation has continued to expand since 2018 with numerous articles now referring to empirical evidence. The evidence presented in prior studies comprises abstract modeling and statistical pattern reviews with no statistically significant findings reported to date. Notably, one article is an advocacy piece by a tech lobbyist who at one point purchased priority Google results for the search robot taxation. In some cases, technical errors are sufficient to reverse the stated results. Examples of error in empirical analyses include (i) motivated reasoning, such as the failure to model simpler or best explanations; (ii) lack of causal analysis; (iii) tax technical errors; (iv) omission of citations to conflicting theory or results; (v) errors in accounting methods; (vi) enhanced degrees of freedom in modeling parameters; and (vii) reliance on economic theories not reflecting robots as a fourth factor of production. The empirical evidence indicates that capital investment, such as in robots, occurs largely in higher tax nations, and that robot density is positively associated with high corporate tax rates, such as in Germany, Japan, South Korea, and the Nordic states, with little or no automation occurring in tax havens where the value of tax deductions for capital investment is zero. This article summarizes the various reasons to be skeptical about the empirical evidence offered thus far in the context of robot taxation in Part II. A comprehensive review of the empirical literature on robot taxation is provided in Part III, where the existing empirical literature is categorized based on methodology applied, technical errors, degrees of freedom, and results