J. Clifton Fleming

Full-time Faculty

Ernest L. Wilkinson

Professor of Law

J. Clifton Fleming, Jr., Ernest L. Wilkinson Chair and professor of law, joined the BYU faculty in 1974. Fleming served as Associate Dean for Academic Affairs from 1986 to 1999 and as Associate Dean for Faculty and Curriculum from 1999 to 2004. He was appointed to the Wilkinson Chair in 1998. In 1985-86, he was Professor-in-Residence in the IRS Chief Counsel's Office in Washington, D.C.

Fleming’s academic and teaching career has spanned the globe. He has been a Fulbright visiting professor of law at the University of Nairobi, and a visiting professor at the University of Queensland, Central European University in Budapest, Murdoch University School of Law in Perth, and holder of a visiting scholar chair at the University of Florida’s law school. In 2011, he held the Fulbright Distinguished Chair at the Vienna University of Economics and Business, Vienna, Austria.

Professor Fleming teaches courses on US and international tax law, European Union law, and public international law.

Courses Taught

  • Business Planning
  • European Union Law
  • Federal Income Taxation of Corporate
  • International Income Taxation
  • Public International Law
  • Reorganization Transactions
  • Tax Policy
  • Tax Treaties
  • Taxation of U.S. Income of Foreign Businesses and Investors
  • US Taxation of Foreign Businesses and Investors

Education

  • J.D., George Washington University
  • B.S., Brigham Young University
  • Is Unilateral Formulary Apportionment Better Than the Status Quo?, Chapter 6 in The Allocation of Multinational Business Income: Reassessing the Formulary Apportionment Option (Krever and Vaillancourt eds. 2020).
  • To What Degree Does Customary International Law Require Accommodation of a Source Country’s Right to Tax High, Tax Low or Not Tax at All?, Chapter 14 in A Commitment to Excellence: Essays in Honor of Emeritus Professor Gabriel A. Moens (Zimmermann ed. 2018).
  • Why R&D Should Be Allocated to Subpart F and GILTI, 167 Tax Notes Federal (2020), 98 Tax Notes International 1393 (2020).
  • The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the 2017 Tax Legislation, 103 Minn. L. Rev. 1939 (2018). [SSRN]
  • Expanded Worldwide Versus Territorial Taxation After the TCJA, with Robert J. Peroni and Stephen E. Shay, 161 Tax Notes 1173 (2018). [SSRN]
  • Incorporating a Minimum Tax in a Territorial System, with Robert J. Peroni and Stephen E. Shay, 157 Tax Notes 73 (2017). [SSRN]
  • The EU Apple Case: Who Has a Dog in the Fight?, 154 Tax Notes 251 (2017), 85 Tax Notes Int’l 179 (2017). [SSRN]
  • Getting from Here to There: The Transition Tax Issue, 154 Tax Notes 69 (2017) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Defending Worldwide Taxation with a Shareholder-Based Definition of Corporate Residence, 2016 BYU L. Rev. 1681 (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Two Cheers for the Foreign Tax Credit, Even in the BEPS Era, 91 Tul. L. Rev. 1 (2016) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Essay on R&D Tax Incentives—Growth Panacea or Budget Trojan Horse?, 69 Tax L. Rev. 419 (2016) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Treasury’s Unfinished Work on Corporate Expatriations, 150 Tax Notes 933 (2016), 81 Tax Notes Int’l 673 (2016). [SSRN]
  • Designing a 21st Century Corporate Tax—An Advance U.S. Minimum Tax on Foreign Income and Other Measures to Protect the Tax Base, 17 Fla. Tax Rev. 669 (2015) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Getting Serious About Cross¬–Border Earnings Stripping: Establishing an Analytical Framework, 93 N.C. L. Rev. 673 (2015) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Formulary Apportionment in the U.S. International Income Tax System: Putting Lipstick on a Pig?, 36 Mich. J. Int’l L. 1 (2015) (with Robert J. Peroni and Stephen E. Shay). Finalist for 2015 IBFD Frans Vanistendael Award. [SSRN]
  • A Hitchhiker’s Guide to Outbound International Tax Reform, 18 Chapman L. Rev. 133 (2014) (with Robert J. Peroni). [SSRN]
  • Designing a U.S. Exemption System for Foreign Income When the Treasury is Empty, 13 Fla. Tax Rev. 397 (2013) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Territoriality in Search of Principles and Revenue: Camp and Enzi, 141 Tax Notes 173 (2013), 72 Tax Notes Int’l 155 (2013) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Searching for the Uncertain Rationale Underlying the US Treasury’s Anti-treaty Shopping Policy, 40 INTERTAX 245 (2012). [SSRN]
  • A Note on the Zimmer Case and the Concept of Permanent Establishment in Tax Treaty Case Law Around the Globe-2011, 107 (2011). [SSRN]
  • Can Tax Expenditure Analysis Be Divorced from a Normative Tax Base?: A Critique of the ‘New Paradigm’ and its Denouement, 30 Va. Tax Rev. 135 (2010). [SSRN]
  • Some Perspectives from the United States on the Worldwide Taxation vs. Territorial Taxation Debate, 3 J. Australasian Tax Teachers Ass’n 35 (2008) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • http://www.atax.unsw.edu.au/atta/jatta/jattavol3no2/1_JATTA_vol3_no2.pdf. Also published as Perspectives on the Worldwide vs. Territorial Taxation Debate, 125 Tax Notes 1079 (2009), 57 Tax Notes Int’l 75 (2010).
  • Worse Than Exemption, 59 Emory L.J.79 (2009) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • Reinvigorating Tax Expenditure Analysis and Its International Dimension, 27 Va. Tax Rev. 437 (2008) (with Robert J. Peroni). [SSRN]
  • Replacing the Federal Income Tax with a Postpaid Consumption Tax: Preliminary Thoughts Regarding a Government Matching Program for Wealthy Investors and a New Tax Policy Lens, 59 SMU L. Rev. 617 (2006). [SSRN]
  • Exploring the Contours of a Proposed U.S. Exemption (Territorial) Tax System, 109 Tax Notes 1557 (2005), 41 Tax Notes Int’l 217 (2006) (with Robert J. Peroni). [SSRN]
  • Eviscerating the Foreign Tax Credit Limitations and Cutting the Repatriation Tax– What’s ETI Repeal Got to Do with It?, 104 Tax Notes 1393 (2004), 35 Tax Notes Int’l 1081 (2004) (with Robert J. Peroni). [SSRN]
  • Reform and Simplification of the U.S. Foreign Tax Credit Rules, 31 Tax Notes Int’l 1177 (2003), 101 Tax Notes 103 (2003) (with Robert J. Peroni and Stephen E. Shay). Excerpted in Michael J. Graetz, Foundations of International Income Taxation (2003). [SSRN]
  • American Offshore Business Tax Planning: Can Australian Lawyers Get a Piece of the Action?, 8 Int’l Trade and Bus. Law Ann. 215 (2003).
  • “What’s Source Got to Do With It?” Source Rules and U.S. International Taxation, with Stephen E. Shay and Robert J. Peroni, 56 Tax L. Rev. 81 (2002). Also published in The Tillinghast Lecture 249 (2007). Excerpted in Michael J. Graetz, Foundations of International Income Taxation (2003). [SSRN]
  • Fairness in International Taxation: The Ability-to-Pay Case for Taxing Worldwide Income, 5 Fla. Tax Rev. 299 (2001) (with Robert J. Peroni and Stephen E. Shay). [SSRN]
  • The United States Should Tax U.S. Corporations on Their Worldwide Income, 21 ABA Tax Sec. Newsl. 14 (Fall 2001) (with Robert J. Peroni and Stephen E. Shay).
  • Electronic Commerce and the State and Federal Tax Bases, 2000 BYU L. Rev. 1 (2000). [SSRN]
  • Deferral: Consider Ending It Instead of Expanding It, 86 Tax Notes 837 (2000) (with Robert. J. Peroni and Stephen E. Shay). Also published as An Alternative View of Deferral: Considering a Proposal to Curtail, Not Expand, Deferral, 20 Tax Notes Int’l 547 (2000).
  • Getting Serious About Curtailing Deferral of U.S. Tax on Foreign Source Income, 52 SMU L. Rev. 455 (1999) (with Robert J. Peroni and Stephen E. Shay). Excerpted in Michael J. Graetz, Foundations of International Income Taxation (2003). Distributed as reference and discussion material for Plenary Session, ABA Section of Taxation, Fall Meeting, October 14, 2000, Los Angeles, California. [SSRN]
  • The Deceptively Disparate Treatment of Business and Investment Interest Expense Under a Cash-Flow Consumption Tax and a Schanz-Haig-Simons Income Tax, 3 Fla. Tax Rev. 544 (1997). [SSRN]
  • Domestic Section 351 Transfers of Intellectual Property: The Law as It Is vs. The Law as the Commissioner Would Prefer It to Be, 16 J. Corp. Tax’n 99 (1989). [SSRN]
  • The Highly Avoidable Section 357(c): A Case Study in Traps for the Unwary and Some Positive Thoughts About Negative Basis, 16 J. Coerp. L. 1 (1990). [SSRN]
  • Books
  • Federal Income Tax: DoctrineStructure and Policy (3d ed. 2004) (with Joseph Dodge and Deborah Geier) (with teachers manual, 399 pages).
  • Federal Income Tax: DoctrineStructure and Policy (2d ed. 1999) (with Joseph Dodge and Deborah Geier) (with teachers manual, 483 pages).
  • Federal Income Tax: DoctrineStructure and Policy (1995) (with Joseph Dodge and Deborah Geier) (with teacher’s manual, 404 pages). Reviewed in Jensen, Not Just Another Casebook, 68 Tax Notes 223 (1995).
  • Tax Aspects of Forming and Operating Closely Held Corporations, (1992) (with Janet Spragens. Listed as highly recommended in Pratt, Federal Tax Sources Recommended for Law School Libraries, 87 Law Library J. 387 (1995).
  • Tax Aspects of Buying and Selling Corporate Businesses (1984). Listed as recommended in Pratt, Federal Tax Sources Recommended for Law School Libraries, 87 Law Library J. 387 (1995).
  • Book Chapters
  • “To What Degree Does Customary International Law Require Accommodation of a Source Country’s Right to Tax High, Tax Low or Not Tax at All?” in A Commitment to Excellence: Essays in Honour of Emeritus Professor Gabriël A. Moens, 312 (Augusto Zimmermann, ed., 2018). [SSRN]
  • “Some Cautions Regarding Tax Simplification,” in Tax Simplification 227 (Chris Evans et al. eds., 2015). [SSRN]
  • “A Note on the Zimmer Case and the Concept of Permanent Establishment” in Tax Treaty Case Law Around the Globe – 2011, 107 (Michael Lang et al eds., 2012).
  • Briefs
  • Brief of Amici Curiae Law Professors and Economists in Support of Petitioner, South Dakota v. Wayfair, Inc, 138 S. Ct. 2080 (2018) (No. 17-494). [SSRN]
  • Brief of Tax Law Professors As Amici Curiae in Support of Petitioner, Loudoun County, Virginia v. Dulles Duty Free, LLC, 138, S. Ct. 1440 (2018) (No. 17-904). [SSRN]
  • Brief of Amici Curiae Law Academics and Professors in Opposition to the Petition for Rehearing En Banc in Altera v. Commissioner, 898 F.3d 1266 (2018) (No. 16-70496 and No. 16-70497). [SSRN]
  • Miscellaneous
  • Letter to the Editor, Worldwide vs. Territorial Taxation Debate: Response to Shields, 126 Tax Notes 537 (2010), 57 Tax Notes Int’l 351 (2010) (with Robert J. Peroni).
  • Letter to the Editor, Worldwide Taxation vs. Territorial Taxation: Framing the Debate, 110 Tax Notes 549 (2006) (with Robert J. Peroni).
  • Letter to the Editor, Framing the Debate Over Worldwide Versus Territorial Taxation, 41 Tax Notes Int’l 349 (2006) (with Robert J. Peroni).
  • Letter to the Editor, More Thoughts on the Capitalization vs. Deduction Conundrum, 89 Tax Notes 417 (2000).
  • Letter to the Editor, Taking Territorial Taxation to Task, 87 Tax Notes 447 (2000), 20 Tax Notes Int’l 1778 (2000) (with Robert J. Peroni and Stephen E. Shay).
  • Letter to the Editor, Territorial Taxation: Worth a Look But Not the Way to Go, 86 Tax Notes 1794 (2000), 20 Tax Notes Int’l 1339 (2000) (with Robert J. Peroni and Stephen E. Shay).
  • Holder, Fulbright Distinguished Chair, Vienna University of Economics and Business, Vienna, Austria, 2011
  • Visiting Professor, Murdoch University School of Law, Perth, Australia, January 2008, June 2010
  • Holder, James J. Freeland Eminent Visiting Scholar Chair, Fredric G. Levin College of Law, University of Florida, 2002
  • Visiting Professor, T.C. Beirne School of Law, University of Queensland, Brisbane, Australia, 1997, 1999
  • Professor-in-Residence, Office of Chief Counsel, Internal Revenue Service, Washington, D.C., 1985-86
  • Professor, J. Reuben Clark Law School, Brigham Young University, 1976-1998
  • Associate Professor, J. Reuben Clark Law School, Brigham Young University, 1974-1976
  • Associate Professor, University of Puget Sound Law School (now Seattle University Law School), 1973-1974
  • Holder, Ernest L. Wilkinson Chair and Professor of Law, J. Reuben Clark Law School, Brigham Young University, 1998-present
  • Regular Visiting Professor, Central European University, Budapest, Hungary, 2001-present
  • Associate Dean for Faculty and Curriculum, J. Reuben Clark Law School, Brigham Young University, 1999-2004
  • Associate Dean for Academic Affairs, J. Reuben Clark Law School, Brigham Young University, 1986-1999