#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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Perkins v. Commissioner

Court: US Court of Appeals for the Second Circuit

Docket: 19-2481

Opinion Date: August 12, 2020

Judge: Richard C. Wesley

Areas of Law: Native American Law, Tax Law

Neither the 1794 Treaty of Canandaigua nor the 1842 Treaty with the Seneca Nation create an individualized exemption from federal income taxes for income "derived from" Seneca land. In this case, petitioners filed suit in tax court seeking a redetermination of their 2008 and 2009 joint individual tax returns, in which they sought an exemption for income derived from their gravel operation, contending that their gravel sales during 2008 and 2009 were exempt from federal income taxes pursuant to the two treaties. The Second Circuit affirmed the tax court's determination that neither treaty created an exemption and rejected petitioners' argument suggesting otherwise because petitioners' view is premised upon the erroneous presumption that an exemption from federal taxes for income derived from land held in trust for American Indians extends to land that remains in the possession of the Seneca Nation of Indians. The court also noted that, to the extent the 1842 Treaty with the Seneca creates an exemption from taxes on Seneca land, that exemption does not cover income derived from Seneca land by individual enrolled members of the Seneca Nation.

United States v. Sanmina Corp.

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-17036

Opinion Date: August 7, 2020

Judge: Consuelo Maria Callahan

Areas of Law: Legal Ethics, Tax Law

After Sanmina claimed a worthless stock deduction on its federal tax return, the IRS issued a summons for the memoranda authored by Sanmina in-house counsel. Sanmina objected on the basis that they were protected both by attorney-client privilege and the attorney work-product doctrine. On subsequent remand, the district court determined that the memoranda were covered by both attorney-client privilege and work-product protection, but that those privileges had been waived. The Ninth Circuit held that Sanmina waived the attorney-client privilege when it disclosed the Attorney Memos to DLA Piper. However, the panel held that such disclosure did not automatically waive work-product protection over the Attorney Memos and, rather, waiver of work-product immunity requires either disclosure to an adversary or conduct that is inconsistent with the maintenance of secrecy against its adversary. In this case, the panel held that Sanmina did not expressly waive work-product immunity merely by providing the Attorney Memos to DLA Piper, but its subsequent use of the DLA Piper Report to support its tax deduction in an audit by the IRS was inconsistent with the maintenance of secrecy against its adversary. Therefore, the panel explained that Sanmina's implied waiver of the work-product protection only extends to the factual portions of the Attorney Memos. The panel granted in part and denied in part the IRS's petition to enforce its summons.

Mississippi Dept. of Revenue v. Comcast Cable Communications, LLC

Court: Supreme Court of Mississippi

Citation: 2019-CA-01134-SCT

Opinion Date: August 13, 2020

Judge: Griffis

Areas of Law: Government & Administrative Law, Tax Law

The Mississippi Department of Revenue (MDOR) appealed a chancellor’s entry of summary judgment in favor of Comcast of Georgia/Virginia, Inc., n/k/a Comcast Communications, LLC. In July 2012, the MDOR commenced an audit of Comcast’s Corporate Income and Franchise Tax Returns for 2008, 2009, and 2010. At the conclusion of the audit, the MDOR determined that Comcast owed additional corporate franchise tax. Specifically, the MDOR found that Comcast’s preapportioned capital base and its Mississippi apportionment ratios should have been increased for each applicable year. The increase in Comcast’s capital base was attributable to the MDOR’s disallowance of the holding-company exclusion. The increase in Comcast’s Mississippi apportionment ratios was attributable to MDOR’s inclusion of all of Comcast’s Mississippi destination sales as gross receipts. The application of the audited apportionment ratios to the audited capital base resulted in additional taxable capital apportioned to Mississippi for each year, with a corresponding increase in franchise tax due for each year. The Mississippi Supreme Court determined that because the MDOR’s franchise-tax assessment does not fairly represent the true value of Comcast’s capital in Mississippi, the chancellor’s judgment was correct.

Mississippi Dept. of Revenue v. SBC Telecom, Inc. et al.

Court: Supreme Court of Mississippi

Citation: 2019-CA-00917-SCT

Opinion Date: August 13, 2020

Judge: Chamberlin

Areas of Law: Business Law, Communications Law, Government & Administrative Law, Tax Law

At issue in this appeal was the computation of the broadband credit limits that a taxpayer may use against its franchise-tax and income-tax liabilities. During the tax periods at issue, AT&T Mobility II, LLC, and BellSouth Telecommunications operated telecommunications enterprises and made significant investments in broadband technology developments throughout Mississippi, generating Broadband Investment Credits (Broadband Credits) under Mississippi Code Section 57-87-5. BellSouth Mobile Data, SBC Alloy Holdings, New BellSouth Cannular Holdings, New Cingular Wireless Services, SBC Telecom, and Centennial were all direct or indirect corporate owners of AT&T Mobility II. The taxpayers here each filed a separate franchise-tax return and were included as affiliated group members in the combined corporate income-tax return filed on behalf of the affiliated group. The Mississippi Department of Revenue (MDOR) determined that the broadband credits the taxpayers had claimed had been improperly applied to an amount greater than the credit cap of 50 percent of the taxpayers’ tax liabilities according to Mississippi Code Section 57-87- 5(3) (Rev. 2014). The MDR disallowed portions of the broadband credits claimed by the taxpayers and assessed additional franchise taxes, interest and penalties to the taxpayers separately on several dates between December 22, 2014, and May 20, 2015. The taxpayers argue that each taxpayer is jointly and severally liable for the total combined income-tax liability of the affiliated group, therefore making the income-tax liability of each taxpayer the same as the total combined income-tax liability of the affiliated group. The chancellor granted summary judgment in favor of the taxpayers and ruled that the taxpayer’s tax liabilities under Chapters 7 and 13 of Title 271 of the Mississippi Code was the aggregate of the taxpayer’s separate franchise-tax liability and the total combined income-tax liability of the affiliated group. The Mississippi Supreme Court affirmed the chancellor's ruling on the credit-computation issue. "The plain and unambiguous language of Section 57-87-5 clearly limits broadband credits that a taxpayer may take in any given year to 50 percent of the aggregate of the taxpayers’ franchise-tax liability and the total combined income-tax liability of the affiliated group."

Martinez v. Town of Hartford

Court: Vermont Supreme Court

Citation: 2020 VT 70

Opinion Date: August 7, 2020

Judge: Beth Robinson

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law

Taxpayer Gabriel Martinez appealed a Property Valuation and Review Division (PVR) hearing officer's decision setting the fair market value of his property for purposes of the 2017 Town of Hartford grand list. Taxpayer argued the hearing officer erred in estimating fair market value based on sales of comparable properties because the value was conclusively established by the price taxpayer paid for the property in a contemporaneous arms-length transaction. After review, the Vermont Supreme Court held that, although the recent arms-length sale price constituted strong presumptive evidence of the fair market value of the property, the hearing officer did not commit legal error in considering other evidence of fair market value. In addition, the Court concluded the appraisal was rationally derived from the findings and evidence.