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Chapter 28. Working With the Tax Law START - Research Process - Below. Tax Sources. Primary Sources - Code Legis Hist Regs IRS pronouncements Court decisions. Statutory Sources. Statute Codifications - 39, 54, 86 Rev Acts part of Code Numbering 39 54 & 86 Seidman’s.

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chapter 28

Chapter 28

Working With the Tax Law

START - Research Process - Below

tax sources
Tax Sources
  • Primary Sources -
    • Code
    • Legis Hist
    • Regs
    • IRS pronouncements
    • Court decisions
statutory sources
Statutory Sources
  • Statute
  • Codifications - 39, 54, 86
  • Rev Acts part of Code
  • Numbering
    • 39
    • 54 & 86
  • Seidman’s
slide4
Legis Hist
    • H Rep (Ways & Means)
    • S Rep (SFC)
    • Conf Comm Rep
  • Code Arrangement
    • Overall (OH)
    • Within a Section (OH)
administrative sources
Administrative Sources
  • Not precedent (i.e., precedent only loosely)
  • but substantial authority (Conc Sum 28-1) (OH)
slide6
Regs:
  • Numbering, citation
  • final / prop / temp
  • legis/inter/proc
  • Final + Temp = force of law
  • prop = law brief;
  • Judicial review
other irs issuances
Other IRS Issuances
  • Rev Ruls
  • Ltr Ruls - post 84 sub auth; sanitized
  • TD’s
  • Anns, Notices
  • det ltrs
  • TAMs, GCMs
  • AODS
judicial sources
Judicial Sources
  • court config (Fig 28-3)(OH): cts of orig jurisd, cts of app jurisd
  • stare decisis: binding v. advisory precedent, or controlling v. persuasive; holding v. dicta
trial courts
Trial Courts:
  • cts - T.C., D.CT., U.S.Ct. Fed Cl.
  • # judges
  • location
  • juries
  • b4 payment v. refund (C S 28-2)(OH)
appellate cts
Appellate Cts:
  • 11 + D.C. + Fed Cir; (CA - 9th Cir) (Fig 28-5) (OH)
  • US Ct of Fed Cl (new name 10/92) - appeal to Fed Cir Ct App
  • T.C. appeal to one of 11 or DC - Golsen rule; no appeal small cases division (50000)
slide11
“appeal” to USSC = writ of cert (certiorari) (discretionary)
  • role of app ct (review of applic law)
  • maj, diss, concur opins - app cts and panel at TC, US Ct Fed Cl
  • affirm, reverse, remand-app cts
judicial cites courts reporters
Judicial Cites - Courts & Reporters
  • Case name, followed by reporters, Ct. (OH)
  • (1) TC (pre 43 BTA)
  • reg cases, mem cases, small tax cases
  • acq and NA by IRS, memorandum or regular cases
  • CCH, PH (now RIA) pub; only official T.C.
slide13
(2) USDC, Ct of Fed Cl, CT App
  • USTC, AFTR
  • also F Supp, F3d, Cl Cts (82)/Fed.Cl (92)
research
Research
  • The process (as applied to assigned problem)
  • issue (state it)
  • sources (decide which)
  • look at (sources)
  • write (samples)
slide16
Research = method to determine available solution to situation with tax conseqs; i.e., to find applicable law to solve problem
slide17
Planning = consideration of alternatives, if any
  • Steps - ID & refine problem (state issue)
  • locate appropriate sources (decide what to look at & look at)
  • weigh validity (conflicts - IRS v. code v. courts possible)(put it together)
slide18
Solution, includg nontax (memo: issue, law, reasoning, conclusion) (write)
  • communicate to t/p (t/p decision)
  • F/U (where to approp - no duty unless take on)
slide19
Locating Appropriate Sources
  • Usually tax service 1st
  • CCH SFTR, RIA USTR (Prev PH Taxes)
careful
Careful
  • Update
  • Annotations - see full
  • Periodicals: - Index: Goldstein, CCH, Lexis
  • “More Useful” (OH)
  • Careful - Reading the Code
  • Assessing Validity - diff sources, with RA
  • Communicating - Memo Form
planning
Planning
  • Minimization of Tax AND other business goals (social?) (deferral)
  • Avoidance v. Evasion
  • Judge Learned Hand
    • Cant = hypocritically pious language
slide23
The now classic words of Judge Learned Hand in Commissioner v. Newman reflect the true values a taxpayer should have:

Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced extractions, not voluntary contributions. To demand more in the name of morals is mere cant.

computers in tax practice
Computers in Tax Practice
  • Tax Software for returns, planning - professional (e.g., Lacerte, CCH) home use (Tax Cut, Turbo Tax)
  • Microcomputer spreadsheets
slide25
Research: Lexis + Westlaw, CCH Research Network, RIA Checkpoint (on line)
  • Word arrangement v. legal theory/fact pattern (logic)
  • up to the minute
  • CD ROM
  • Internet