200 Episodes: Tax Notes Talk’s Defining Interviews

Taxes

In honor of Tax Notes Talk’s 200th episode, we review some of our favorite interviews and discussions from the last 100 episodes.

This transcript has been edited for length and clarity.

David D. Stewart: Welcome to the podcast. I’m David Stewart, editor in chief of Tax Notes Today International. This week: celebrating 200 episodes.

Yes, this is our 200th episode. To honor that we’re going to take a look back at the last 100 episodes. And if you want to hear about our first 100 episodes, you can check out a related episode.

Now, we’ve covered a lot of interesting topics over the past two years and 100 episodes, from the COVID-19 pandemic and its impact on all facets of tax — including how it’s affected women in tax — to some of the biggest developments in U.S. and international tax with newsmakers from the around the world.

So, join us as we dive into some of our favorite interviews and discussions from these past 100 episodes.

In 2020 our parent company Tax Analysts celebrated its 50th anniversary. We had our CEO and President Cara Griffith on the podcast to talk about the organization’s history advocating for transparency in tax policy and its legacy. Here she is on why the world still needs Tax Analysts today.

Cara Griffith: The world still needs a Tax Analysts without a doubt. They need a Tax Analysts because we do so many things. At the end of the day, we serve as an educator, we provide a forum for debate, and we serve as a watchdog. All of those are really, truly necessary in order to ultimately have that good debate and end up with good tax policy that leads to good tax administration.

We strive to educate our readers every day by explaining facts in a logical fashion and making difficult issues comprehensible to the extent that we can by presenting, “Here’s what happened. Here’s what everyone is saying.”

That being said, we don’t dumb down our stories ever. One read of any Tax Notes publication is evidence of that. We tackle those hard technical issues that really need to be covered. There are issues that are best covered by a publication like Tax Notes that is so familiar with the issues. You’re not going to get this in the mainstream press.

We also challenge our readers to think broadly and to be exposed to a wide variety of different views and opinions. We’re not in the business of cherry-picking our views and opinions. We put them all out there. Even those that may not be all that popular. Really, we are that educator.

By doing that, we are the forum for debate. We keep the conversation going. Our founder Tom Field’s true belief that out of that debate, out of that clash of opinions, good tax policy is going to come.

I will say, I drank the Kool-Aid years ago and I truly believe that. It’s that you need to be able to go out, vet all of the issues, and acknowledge opinions that aren’t your own and that maybe you don’t agree with. But it’s really just so important to take a look at them, to understand, to see where the other side is coming from. 

Tax Analysts has for many years served as a watchdog for both taxing authorities and public institutions. We’ve been engaged in numerous lawsuits over the years. We’ve also scrutinized a lot of private institutions. That’s an important role that a journalism outlet like ours serves.

Without a doubt, there’s as much of a need for Tax Analysts today as it was when Tom founded the organization.

David D. Stewart: Like the rest of the world, news of the COVID-19 pandemic dominated our discussions here on the podcast. Over the past 100 episodes, we talked with newsmakers, practitioners, and others in the tax community about how the coronavirus was affecting all facets of life and the tax implications.

In early 2020 we chatted with a professor in lockdown in Shanghai about the pandemic’s initial impact on China and the role of tax. Later, we talked to experts in the States about the U.S. legislative response, including Nicole Kaeding, formerly of the National Taxpayers Union Foundation, about the Coronavirus Aid, Relief, and Economic Security Act. Here she is talking about whether that $2 trillion package was stimulus or relief.

Nicole Kaeding: What the CARES Act was all about was about economic relief. It was based on this idea that for the next several weeks, perhaps next several months, we have told businesses to shut their doors. Except for a few favorite industries, like groceries and banks, everyone else is at home. We need them to do that to control the public health response to the virus, but that means that those businesses are taking a hit to revenue, and every day in the newspapers we’re seeing more and more examples of that.

The CARES Act was not trying to boost aggregate demand. It was about trying to put a floor underneath people and to make sure that businesses can stay afloat so that they don’t have to lay off as many people as they are. Then, we can help affected individuals that are laid off meet their obligations.

We want them to be able to pay their rent and their mortgage, and we want them to be able to buy groceries. We know that they’re not going to go out and book a vacation right now. We know that businesses largely aren’t going to be expanding operations.

This bill is about economic relief. We are not trying to grow the economy with this. We’re just trying to prevent it from backsliding even further.

David D. Stewart: Nearly a year later, in 2021, U.S. lawmakers passed another COVID-19 relief package. The American Rescue Plan Act contained a number of tax provisions, including the popular advance child tax credit.

Before it passed, we spoke with Rebecca Thompson of the Washington, D.C. nonprofit Prosperity Now about why the credit is so important to low-income families.

Rebecca Thompson: The expansion of the child tax credit is beneficial to support families with children. I don’t think it’ll be enough just because the wealth gap is so wide and so large. This is just one step in the process. There are many other policies that we would like to see enacted to support the whole family.

While it’s a step in the right direction, it’s not quite enough. I am a single mother of four sons and so I’m also very excited about the possibility of an expanded child tax credit.

I will say that one of the good things that has come out, but has also raised a concern and an issue, is that what we’re finding is that low- and moderate-income filers, especially people of color, are paying attention. They’re watching and they have a heightened level of awareness around what’s happening with the COVID-19 relief package.

For instance, one of our partners in New Jersey commented a couple of weeks ago that as their sites were opening they already had tax filers coming in. They were reviewing a return with a client and she looked over the numbers and said, “Well, what happened to my $3,000? Where is my $3,000 child tax credit that I was promised that was in the COVID-19 relief package?”

People are aware of what’s in the package. They understand how it can benefit them. They’re looking for it right now just because they don’t have a full understanding of the legislative process. And just because it’s in the relief package that the president proposed doesn’t make it a done deal.

David D. Stewart: In the past 100 episodes, we’ve interviewed a number of high-ranking government officials. Before their departures from the IRS, we chatted with former Criminal Investigations division Chief Don Fort and the former head of the Small Business/Self-Employed Division, Eric Hylton.

We also interviewed U.S. Tax Court Chief Judge Maurice Foley about his path to the bench and his second term as chief judge. Here we asked him about the unique challenges of being the first Black Tax Court judge:

Maurice B. Foley: I was very blessed in that I was raised to really focus on taking advantage of opportunities. I grew up in places like Utah and Minot, North Dakota. My dad was in the Air Force and he worked on Minuteman missiles. We were oftentimes located in places that were pretty out of the way and isolated.

It was not uncommon for me growing up to be the one and only. I became quite comfortable being the one and only to the point where it never even dawned on me.

But I was raised by parents who emphasized faith and the importance of education. While there were obstacles, they were never obstacles that I deemed to be very significant because I had a priority. I prioritized my faith and the emphasis on education. I knew, and my father would tell me, that with an education and a blessing, anything is possible. In my life, that’s proven to be the case.

David D. Stewart: Last October we had National Taxpayer Advocate Erin Collins on the podcast to discuss taking on the role at the onset of the coronavirus pandemic and the challenges she and the IRS have faced.

Now, this interview has a bit more significance for us. It was the last podcast interview done by Tax Notes senior reporter William Hoffman. As we were preparing for this episode, we got word that Bill passed away unexpectedly on January 1.

Bill was an excellent reporter, and I always enjoyed working with him on the podcast or just running into him in the hallways at Tax Analysts. He was always working on an interesting story, and he reveled in making government officials just a bit uncomfortable with his tough, but always fair, questions.

In this interview, Bill asks Collins about changes the IRS made to its FAQs in 2021, and what she’d like to see from the IRS going forward.

William Hoffman: Do you believe that this is the IRS’s final word on the matter? Or do you think that they’re open to revisions or modifications in light of public criticism?

Erin Collins: They’re always open to comments, whether or not it’s going to change. I think the real challenge is, and being inside the building as well as outside of the building, trying to recognize the pros and cons. When you look at the approval process of FAQ, it’s substantially lower than the approval process of more official guidance, a regulation or revenue ruling, revenue procedures.

The IRS is basically saying, “If you want it to be binding for all purposes, we have to go through this review process.” That’s the challenge here. The whole purpose of an FAQ is it’s quick and it gets the information out there. They tend to be issued when there’s a change of law, change of position, or it’s an emerging issue. They want to get information out to taxpayers.

The more we push to make it binding, I think the slower that guidance is going to be. I think at the end of the day, practitioners and the IRS need to determine which is more important: having the binding guidance or quick guidance. Because in a perfect world we could have both. I just don’t see IRS today in a perfect world.

William Hoffman: But which do you see it as? Which end would you tend to favor? Binding guidance or quick guidance?

Erin Collins: I took the quick win in talking with them. I thought it was important to have. I do believe that the IRS, if they say, “X is deductible,” you may not be able to say it’s binding on the IRS, but if that’s a correct interpretation of the law, then the FAQ will be very helpful.

If the IRS changes their mind and they now say, “X is not deductible,” it wouldn’t matter if it was binding or not because the IRS has changed their mind.

I look at it and try and do it as a practical consequence. If we were to look at the legal niceties and dance on the head of a pin, absolutely, I would like to have it so it’s binding on the IRS.

David D. Stewart: Over the past 100 episodes on this podcast, we’ve covered some pretty big news in the international tax world: the development and final agreement on new global corporate tax rules.

We had Tax Notes chief correspondent Stephanie Soong Johnston on the podcast many, many times to discuss the OECD inclusive framework’s two-pillar reform plan. Most recently, she discussed lingering questions and reactions to the final agreement:

Stephanie Soong Johnston: I think reactions kind of fall into two camps. One is: “Hey, thank God we have some certainty finally.” There are some major blanks that are fulfilled. But at the same time, there are a lot of outstanding issues that need to be addressed.

It was interesting to cover this story because as you follow the negotiations you find that developing countries, even within the inclusive framework and the G-20, were raising concerns about whether this deal will actually help developing countries.

I covered an event where the Finance Minister of Argentina, who is a member of G-20, said, “This deal is a bad deal, but what’s worse is nothing. So we have to sign up to this.”

He actually acknowledged that this is not what they want, but they’re signing up anyway, which kind of makes you wonder how strong this agreement really is, how solid it is among developing countries.

You’ve heard civil society really criticized this deal. That it doesn’t do enough to help developing countries. It’s asking too much of them. They’re asking too much to give up in exchange for too little. There’s that voice in the debate.

Companies, I think, are just happy that there is some certainty going forward about what these new rules might look like. So far, I’ve seen a lot of statements from businesses in that regard. I think a lot of tech companies are still worried about what the rollback and standstill provisions are under pillar 2 regarding digital services taxes.

Another concern is what’s going to happen with the U.S. on pillar 2? And pillar 1? Will the U.S. be able to push legislation to implement pillars 1 and 2 through Congress? It’s an open question now.

Will the U.S. be able to make good on its promises that it can deliver on implementing pillars 1 and 2? As everyone knows, the U.S. is pretty important to have on board to ensure the effective implementation of both pillars.

To that end, another reaction was from the Republicans here in the States. Reps. Kevin Brady, R-Texas, and Mike Crapo, R-Idaho, who are the top Republican tax writers in Congress, have been very vocal about the Biden administration and Treasury not being that forthcoming with their plan to get these two pillars implemented.

The Republicans are worried that Treasury is trying to get around Senate treaty ratification application process, which is also an open question. What are they planning? We don’t know.

The Treasury officials told reporters that they’re working to get bipartisan support for pillar 1. There’s a lot to like about pillar 1. It gets rid of DSTs that both Democrats and Republicans hate.

They basically said, “We can’t think about that now. It’s too early to think about that.” But the rest of us were thinking, “Well, it’s kind of an important question.”

David D. Stewart: Stephanie will be back on the podcast in our next episode with a special interview with Will Morris, who is leaving his position as head of the tax committee at business at OECD.

The last 100 episodes saw another milestone in international tax news: the fifth anniversary of the base erosion and profit shifting project. We chatted with Bob Stack, who previously represented the U.S. government at the BEPS talks, about his thoughts on the project five years later.

Looking at how the BEPS project proceeded, and as the U.S. negotiator there, do you feel like you met your goals for the outcome of the BEPS project?

Robert Stack: In some respects, yes. I think in some respects, maybe less fully than I would have wanted.

If you look at our goals going in, there were some broad things in which there was a lot of government agreement. Can we do better with interest limitations? Can we do better in hybrids? Can we design better controlled foreign corporation rules?

Those were some of the meat and potatoes issues of BEPS. They were the less sexy ones, but they were important from a government policy point. In that respect, there was a lot of collaboration and I think that work went reasonably well.

In transfer pricing, our big goal was to stay as close as possible to the arm’s-length standard. Not withstanding that transfer pricing was under a lot of attack, mostly because it had suffered politically because of the perception that the transfer pricing rules would be used to put income and tax havens and the like.

My colleagues and I worked really hard. It was over three action items to keep it as close as possible to arm’s length. I felt very good about that. Other people wanted to turn them into mushy or antiabuse rules, subjective things, and the like. 

In that sense, I’d say yes. But in a second sense, if you look at something like the principal purpose test in the multilateral instrument, we were never big fans of very loose, subjective standards. We think it hurts certainty and administrability for taxpayers.

Things like that, and the new permanent establishment standard that was done, were probably looser than I thought was probably good tax policy. But again, in a big consensus organization for variety of reasons there wasn’t much we could do about that.

At the end of the day, we all agreed on four minimum standards. Another one of our objectives was to agree to things at the OECD that we could actually implement as a Treasury department. The minimum standards were country-by-country reporting, the work on harmful tax practices and exchange of rulings among governments, treaty anti-abuse rules, and improvements to the Mutual Agreement Process.

On that last one, I would just add that it was a great need for improvement in how governments solve controversies among themselves. I think a lot of very good work was done there, including peer review. That was a big goal of the U.S. government, as well as a big chunk of the business community.

David D. Stewart: Another international tax topic that had its time in the spotlight was the EU blacklist. We interviewed Paul Tang, a Dutch member of the European Parliament, about his thoughts on the blacklist. Here he is discussing how the list could be improved.

Paul Tang: I think the blacklist is potentially a very important instrument to set the rules of the game. The EU engages with other countries’ jurisdictions, but we try to set the rules of the game. That in itself is a potentially very forceful and powerful instrument. Of course, the council f- – – -d up. That’s a pity. There’s this very good instrument, but they throw it out of the window.

Things will change. Don’t worry. It will take time and it’ll take pressure, but it will change. The criteria we have now is insufficient.

For example, the Cayman Islands doesn’t even have a corporate tax system. And then you meet a minister from the Cayman Islands explaining that it’s a perfect place for banks for many reasons, but they don’t have corporate taxes.

Of course this is the reason why the Cayman Islands are attracting a lot of investments on paper, so you should change the criteria. But at this time, you need also to maybe be consistent in applying this criteria.

David D. Stewart: Over the past 100 episodes, we started a new series examining how tax rules affect marginalized groups. We brought on academics and experts in the field to discuss the intersection of tax and racial inequality, LGBTQ rights, feminism, and diversity in international tax policy.

Most recently, we had Indiana University Professor Goldburn Maynard on the podcast discussing the racial wealth gap and the fight against wealth inequality.

Goldburn P. Maynard Jr.: I think that ultimately I’m still a Black scholar and I come out of a tradition that is used to dealing with some pessimism and impossible odds. It is not that I necessarily carry my work forward because I feel like tomorrow, next year, or even in a decade, these things are necessarily going to change. I just try to make a contribution and hope that other people will pick up some of this work and some of the work will happen later.

In terms of ways forward, I don’t think by any means everything is lost. There are many policymaking levers. For example, the executive branch is still very much committed to trying to do some things on their end in terms of changing rules, changing the ways that they sign contracts, etc., to ensure that there is more racial equity.

So, yes, the courts very much are standing in the way. And yes, 60 votes in Congress stand in the way. And yes, there are many voting shenanigans happening right now that are bothersome.

But on the other hand, there is tons of energy and there is a more robust discussion happening right now about wealth inequality, and fighting wealth inequality than there has been in my lifetime. There’s still some hope there beneath it all.

David D. Stewart: In addition to the serious topics we covered on the podcast in these last 100 episodes, we also had a bit of fun. We talked with Duke Law Professor Larry Zelenak about his findings from watching dozens of hours of tax-related sitcom episodes, and that there’s actually a historical lesson tied in there.

Lawrence A. Zelenak: The really interesting historical accident, Dave, is that the income tax became a mass tax that applied to most of the population only in World War II. It existed of course since 1913, but between 1913 and the early 1940s, usually it applied to only about five or 10 percent of the population, which made it maybe not that good a topic for pop culture.

Sitcoms emerged on radio in the very late 1930s. Within a few years, we had the income tax emerging as a mass tax and sitcoms emerging at almost exactly the same time. From the very beginning, the sitcoms have provided commentary on the income tax. We have a perfect chronological match between these two phenomenon and it’s made for some really interesting sitcom episodes.

David D. Stewart: Now, as a big fan of weird tax facts, I especially enjoyed our episode with Stephanie Soong Johnston highlighting some of the strangest ones we’ve collected over the years. Here’s one of my favorites.

Stephanie Soong Johnston: Heather Self of Blick Rothenberg Ltd. reminded us that Star Wars is actually a tax story. If you go back to the opening crawl of Star Wars Episode I: The Phantom Menace, it reads,

“A long time ago in a galaxy far, far away. Turmoil has engulfed the Galactic Republic. The taxation of trade routes to outlying star systems is in dispute. Hoping to resolve the matter with a blockade of deadly battleships, the greedy Trade Federation has stopped all shipping to the small planet of Naboo. While the Congress of the Republic endlessly debates this alarming chain of events, the Supreme Chancellor has secretly dispatched two Jedi Knights, the guardians of peace and justice in the galaxy, to settle the conflict.”

If it weren’t for a tax dispute, Episode I would have never happened, and we could have avoided Jar Jar Binks.

David D. Stewart: In case you’re curious, knowing a lot of weird tax facts does not always mean you’re going to be good at tax trivia, as we discovered during one of our episodes.

Here’s one of the trivia questions I like most: What invention was created by an IRS service center employee in 1961 and is still used today to sort millions of paper tax return forms? Is it A) the Spaghetti Sorter, B) the Octopus Organizer, C) the Freeman Filer, D) the Tingle Table, or E) Arthur Andersen Shredder?

Now, you’ll actually have to listen to the episode to find out the answer, and it’s worth it.

That’s our look back at our last 100 episodes. I want to thank all of the reporters and guests who have made this possible. And thank you for listening. We’ve had a great time making these 200 episodes, and we hope that you’ll be with us for the next 100.

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