Jack Cummings Receives Tax Notes’ Award for Excellence in Tax Commentary

By Herman Spence III

Jack Cummings received Tax Notes’ inaugural Award for Excellence in Tax Commentary on May 3 at the ABA Tax Section’s annual meeting. Jack is counsel in Alston & Bird’s Raleigh and Washington offices.

The quality and quantity of Jack’s tax articles and other scholarly work are extraordinary. Many of us are like Salieri in “Amadeus.” Our lesser talents allow us to appreciate, but not replicate, Jack’s insightful work.

Congratulations, Jack! Below is a conversation with him:

Over the years, what percentage of your time was spent on client work, and what percentage on scholarly pursuits?

That’s a good question. Only in the last few years has it become pretty heavily weighted towards articles, scholarly or not!

How have you found time to write so many excellent and thorough articles?

Often an article grows out of a practice issue, so research can do double duty.

How much of your time do you spend in Alston & Bird’s Raleigh and Washington offices respectively?

I live in Raleigh and visit DC every couple of months. Since Zoom was invented, you can be anywhere.

To what extent is your private practice the source of topics for articles?

Fairly commonly a practice issue turns into an article. In practice, you often cannot wholly get to the bottom of a question because the client needs an answer, now. Of course, the answer better be right, but it can be “fun” to find the full answers.

You have written numerous articles bemoaning the vague standards applied by the IRS and courts in invoking substance over form, step transaction, economic substance, and the like. Many view those equitable principles as necessarily imprecise, with the courts attempting to identify transactions that are contrary to Congressional intent. Is it feasible to have more precise standards for these principles?

We are about to find out. The Liberty Global judge in effect said, “If you didn’t have a business purpose and were not going to make money from that one step in the several transactions, you lose.” That is a precise standard. If Congress wants to enact such an anti-abuse rule, it could, but Section 7701(o) is not it.

You are, I understand, revising the BNA Portfolio on Lobbying and Political Expenditures. Your articles have occasionally touched on political topics. Have you had significant involvement in politics or advising officeholders about policy matters? Are you concerned about political attacks on the IRS and efforts to cut its funding? Are you concerned about our political system’s inability to impose taxes commensurate with governmental spending? Do you think a national sales tax or value added tax will eventually be enacted when there is a financial crisis?

I revised the Portfolio in 2020 after first doing it back in the 1990s. For sure I am concerned about political attacks on the IRS. They began in earnest in the Tea Party upset around 2013, which was actually a major turning point in the political climate. Demonizing the tax collector is a story that is as old as the Bible, but in Biblical times the tax collector was the representative of the enemy, in effect: the occupying Romans. The whole point is that today “them is us.” The IRS is our way to fund our government, not Rome. But few people see it that way. Given the vast ratcheting down of the income tax that occurs every time Republicans gain power, and the inability of the Democrats to wholly turn that around when they gain power, I do think that eventually the income tax will have to be supplemented by a VAT, which of course will be a Republican victory because it will most heavily impact the wage earners. The stock buyback excise tax and the corporate AMT are examples of how Democrats are unable to directly grapple with the tax problem. They are very poor work-arounds.

Are you frustrated by Tax Notes’ policy of not deleting “that” when not necessary? Perhaps Tax Notes only refuses to delete unnecessary words for us lesser writers!

Funny you say “that” because some genie in my Word program is always telling me to delete words. I don’t know of any particular Tax Notes editorial policy, but as an author, I appreciate that they don’t change my articles too much.

Do you have plans to reduce the time you spend writing articles? I hope not.

As Coach said in Hoosiers when they asked if he would be back next year, “That’s a good question.”

Herman Spence is an attorney with Robinson Bradshaw in Charlotte.