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Marjon Weerepas

Abstract

Cross-border employees and self-employed workers are confronted with the regulations of at least two states when it comes to taxation and social security. Without delving into the specifics of national regulations, this article examines the applicable rules concerning the levy of taxes and social security contributions in the context of cross-border employment. Regulations aimed at avoiding double taxation are different from those aimed at avoiding the double payment of social security contributions. Because social security in the Member States can be financed in different ways, the levying of so-called economic double taxation is possible. This is true in particular where states use a large part of the tax revenues to finance their social security system. Cross-border workers that are required to pay taxes in these states and also pay social security contributions in another state can feel that they are paying double social security contributions. This contributes to a sense of injustice and is undesirable. The conclusion is that possible double economic contributions must be studied in a broader European context. First, the problem must be identified and then solutions formulated in order to prevent double levying.

Open access

Peter Koerver Schmidt

Abstract

This contribution analyzes the origin and creation of Denmark’s tax treaty network in a historical perspective. The development of the Danish treaty network is studied through an international perspective and by discussing a number of milestone events. It is concluded that the general tendency has pointed toward a continuously growing Danish treaty network and also that the question on abuse of the treaties has become of greater concern during the past decades. Moreover, it is argued that the growing number and importance of Denmark’s tax treaties over time created a need for the Danish parliament to be more directly involved in the conclusion of new tax treaties.

Open access

David Kleist

Abstract

The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI), which was signed in June 2017, raises a multitude of questions relating not only to the text of the treaty provisions but also to the way the MLI will interact with tax treaties, for instance, and what it will mean for the future development of tax treaty law and international cooperation in tax matters. This article focuses on two aspects of the MLI. First, it deals with the substance of the MLI by providing an overview of its background and content, including the many options available to the contracting states under the MLI. Second, some thoughts are presented on the effects of the MLI in terms of complexity and uncertainty.

Open access

Roni Rosenberg

Abstract

The goal of this essay is to identify and discuss two aspects of liberty by examining the distinction between act and omission in criminal jurisprudence. Criminal law makes a significant distinction between harmful actions and harmful omissions and, consequently, between killing and letting die. Any act that causes death is grounds for a homicide conviction -- subject, of course, to the existence of the other elements necessary for establishing criminal liability, such as causation and mens rea. However, liability for death by omission is subject to the additional identification of a duty to act. In other words, the defendant will be liable only if we can identify such a duty and show that the breach of this duty resulted in the victim’s death. This distinction between act and omission is rooted in an ethical perspective, in which we instinctively see a difference between actively behaving in a manner that causes harm and passively failing to prevent such harm. Nevertheless, since the beginning of the 1960s, there has been a significant movement to attack and criticize this moral distinction. This critique impacts upon the legal sphere as well, since if the moral distinction between act and omission is not obvious, the legal distinction cannot be clear-cut either. This lack of clarity has led to many attempts to lay a logical foundation for the intuitive understanding that there is indeed a legal distinction between act and omission.

This essay focuses on two principles that reflect different aspects of human liberty which are reflected in criminal jurisprudence. The first is liberal liberty, and the second which I propose, is personal autonomy. While both relate to liberty of the individual, they approach it from different angles, and this difference in perspective results in different definitions of act and omission in criminal jurisprudence.

Open access

Melissa Hamilton

Abstract

Criminal justice stakeholders are strongly concerned with disparities in penalty outcomes. Disparities are problematic when they represent unfounded differences in sentences, an abuse of discretion, and/or potential discrimination based on sociodemographic characteristics. The Article presents an original empirical study that explores disparities in sentences at two levels: the individual case level and the regional level. More specifically, the study investigates upward departures in the United States’ federal sentencing system, which constitutes a guidelines-based structure. Upward departures carry unique consequences to individuals and their effects on the system as they lead to lengthier sentences, symbolically represent a dispute with the guidelines advice, and contribute to mass incarceration. Upward departures are discretionary to district courts and thus may lead to disparities in sentencing in which otherwise seemingly like offenders receive dissimilar sentences, in part because of the tendency of their assigned judges to depart upward (or not).

The study utilizes a multilevel mixed model to test the effects of a host of explanatory factors on the issuance of upward departures at the case level and whether those same factors are significant at the group level-i.e., district courts-to determine the extent of variation across districts. The explanatory variables tested include legal factors (e.g., final offense level, criminal history, offense type), extralegal characteristics (e.g., gender, race/ethnicity, citizenship), and case-processing variables (e.g., trial penalty, custody status). The results indicate that various legal and nonlegal factors are relevant in individual cases (representing individual differences) and signify that significant variations across district courts exist (confirming regional disparities). Implications of the significant findings for the justice system are explored.

Open access

Dennis Sundvik

Abstract

In this paper, I present a review of tax accounting research with a specific focus on earnings management in response to changes in the corporate tax rate. While prior surveys of the tax accounting literature have a broad scope and focus primarily on publicly listed firms, I concentrate on studies examining private firms. These firms have stronger incentives to engage in tax-induced earnings management and recent evidence shows that firms in general defer earnings from high to low tax periods around tax reforms. I summarize contemporary studies, questions examined, and learnings. In addition, I discuss practical implications and outline future research possibilities.

Open access

Daniel J. Smyth

Abstract

Robert Natelson recently published his article, The Founders’ Origination Clause and Implications for the Affordable Care Act, in the Harvard Journal of Law & Public Policy. This article argued the original understanding of the scope of the Senate’s power to amend the House of Representatives’ bills for raising revenue in the Origination Clause permits complete substitutes that are new bills for raising revenue, such as the Patient Protection and Affordable Care Act (PPACA). The original understanding of a constitutional word or provision is what the ratifiers of the Constitution thought was the meaning of the word or provision. When the Senate originated PPACA as an amendment to the House’s Service Members Home Ownership Tax Act of 2009, the Senate replaced the entire House bill, except for the bill’s number, with PPACA.

I consider the original public meaning—not the original understanding—of a constitutional word or provision, unless unrecoverable, to be the controlling meaning of that word or provision. The original public meaning is the meaning that a “reasonable speaker of English” during the founding era would have ascribed to the word or provision. My article argues the original public meaning of amendment is clear and disallows complete substitutes. For instance, founding-era dictionaries indicate an amendment was a change or alteration to something that transformed the thing from bad to better. This definition suggests an amendment must not be a complete substitute because an amendment must preserve at least a part of the thing being amended so that there is something to transform from bad to better.

My article further argues the preponderance of evidence suggests the original understanding of the scope of an amendment actually disallows complete substitutes. For example, much evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and state conventions suggests the dominant view among the founders was that an amendment to the Articles of Confederation, the legal compact between 13 states enacted in 1781, could not be a complete substitute.

My conclusion argues PPACA or any other such complete substitute violates the original public meaning of the scope of an amendment.

Open access

Thomas Halper

Abstract

Most judicial opinions, for a variety of reasons, do not speak with the voice of identifiable judges, but an analysis of several of John Marshall’s best known opinions reveals a distinctive voice, with its characteristic language and style of argumentation. The power of this voice helps to account for the influence of his views.

Open access

Ian Loveland

Abstract

The legitimacy of recent judgments in the Supreme Court, lower federal courts and State courts which have extended the scope of the Due Process and/or Equal Protection clauses of the Fourteenth Amendment has been a fiercely contested controversy in legal and political circles in the USA. The controversy has been especially sharp in relation to the question of same sex marriage, and specifically whether it is within State competence to refuse to allow same sex couples to marry under State law. This paper explores that legitimation controversy through a multi-contextual analysis of the Supreme Court’s starkly divided judgment in Obergefell v Hodges (2015), in which a bare majority of the Court concluded that a State ban on same sex marriage was incompatible with the Due Process clause of the Fourteenth Amendment. This paper critiques both the majority and dissenting opinions, and suggests that while one might applaud the substantive conclusion the Court has reached, the reasoning offered by the majority suffers from several obvious weaknesses both in narrow doctrinal terms and from the broader perspective of safeguarding the Court from well-founded criticism that it is overstepping the bounds of its legitimate constitutional role.

Open access

Erik M. Jensen

Abstract

In a recent Developments in the Law chapter on the Indian Civil Rights Act, authors and editors at the Harvard Law Review seemed to take seriously the so-called “Iroquois influence thesis,” the idea that basic principles of the American government were derived from American Indian nations, in particular the Iroquois Confederacy. Although the influence thesis has acquired a life of its own, being taught in some of America’s elementary and secondary schools, it is nonsense. (One of the sources cited in support of this made-up history is a congressional resolution, as if Congress has some special, historical expertise.) Nothing in American Indian law and policy should depend on the influence thesis, and it is unfortunate that a prominent law review has given it credence. This article explains how the Harvard folks were misguided and why the influence thesis should be interred.