J. Clifton Fleming

Ernest L. Wilkinson Chair and 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 Reorganization Transactions
  • International Income Taxation
  • Public International Law
  • 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, 1967
  • B.S., Brigham Young University, 1964

Publications

  • Articles
  • Defending Worldwide Taxation with a Shareholder-Based Definition of Corporate Residence, with Robert J. Peroni and Stephen E. Shay, 2017 BYU L. Rev. ___ (forthcoming).
  • Two Cheers for the Foreign Tax Credit, with Robert J. Peroni and Stephen E. Shay, 91 Tul. L. Rev. 1 (2016).
  • Essay on R&D Tax Incentives—Growth Panacea or Budget Trojan Horse?, with Robert J. Peroni and Stephen E. Shay, 69 Tax L. Rev. 419 (2016).
  • Designing a 21st Century Corporate Tax—An Advance U.S. Minimum Tax on Foreign Income and Other Measures to Protect the Tax Base, with Robert J. Peroni and Stephen E. Shay, 17 Fla. Tax Rev. 669 (2015).
  • Getting Serious About Cross­–Border Earnings Stripping: Establishing an Analytical Framework, with Robert J. Peroni and Stephen E. Shay, 93 North Carolina Law Review 673 (2015).
  • Formulary Apportionment in the U.S. International Income Tax System: Putting Lipstick on a Pig?, with Robert J. Peroni and Stephen E. Shay, 36 Mich. J. Int’l L. 1 (2015). Finalist for 2015 IBFD Frans Vanistendael Award.
  • A Hitchhiker’s Guide to Outbound International Tax Reform, with Robert J. Peroni, 18 Chapman L. Rev. 133 (2014).
  • Designing a U.S. Exemption System for Foreign Income When the Treasury is Empty, with Robert J. Peroni and Stephen E. Shay, 13 Fla. Tax Rev. 397 (2013).
  • Searching for the Uncertain Rationale Underlying the US Treasury’s Anti-treaty Shopping Policy, 40 INTERTAX 245 (2012).
  • A Note on the Zimmer Case and the Concept of Permanent Establishment, Tax Treaty case Law Around the Globe-2011, p.107 (Linde Verlag Wien 2011).
  • 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).
  • Some Perspectives from the United States on the Worldwide Taxation vs. Territorial Taxation Debate, with Robert J. Peroni and Stephen E. Shay, 3 J. Australasian Tax Teachers Ass’n 35 (2008) 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 International 75 (2010).
  • Worse Than Exemption, with Robert J. Peroni and Stephen E. Shay, 59 Emory L.J.79 (2009).
  • Reinvigorating Tax Expenditure Analysis and Its International Dimension, with Robert J. Peroni, 27 Va. Tax Rev. 437 (2008).
  • 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).
  • Exploring the Contours of a Proposed U.S. Exemption (Territorial) Tax System, with Robert J. Peroni, 109 Tax Notes 1557 (2005), 41 Tax Notes International 217 (2006).
  • Eviscerating the Foreign Tax Credit Limitations and Cutting the Repatriation Tax– What’s ETI Repeal Got to Do with It?, with Robert J. Peroni, 104 Tax Notes 1393 (2004), 35 Tax Notes International 1081 (2004).
  • Reform and Simplification of the U.S. Foreign Tax Credit Rules, with Robert J. Peroni and Stephen E. Shay, 31 Tax Notes International 1177 (2003), 101 Tax Notes 103 (2003). Excerpted in Michael J. Graetz, Foundations of International Income Taxation (Foundation Press 2003).
  • American Offshore Business Tax Planning: Can Australian Lawyers Get a Piece of the Action?, 8 International 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 NYU School of Law, The Tillinghast Lecture 1996-2005 (2007). Excerpted in Michael J. Graetz, Foundations of International Income Taxation (Foundation Press 2003).
  • Fairness in International Taxation: The Ability-to-Pay Case for Taxing Worldwide Income, with Robert J. Peroni and Stephen E. Shay, 5 Fla. Tax Rev. 299 (2001).
  • Electronic Commerce and the State and Federal Tax Bases, 2000 BYU L. Rev. 1 (2000).
  • Deferral: Consider Ending It Instead of Expanding It, with Robert. J. Peroni and Stephen E. Shay, 86 Tax Notes 837 (2000). Also published as An Alternative View of Deferral: Considering a Proposal to Curtail, Not Expand, Deferral, 20 Tax Notes International 547 (2000).
  • Getting Serious About Curtailing Deferral of U.S. Tax on Foreign Source Income, with Robert J. Peroni and Stephen E. Shay, 52 SMU L. Rev. 455 (1999). Excerpted in Michael J. Graetz, Foundations of International Income Taxation (Foundation Press 2003). Distributed as reference and discussion material for Plenary Session, ABA Section of Taxation, Fall Meeting, October 14, 2000, Los Angeles, California.
  • 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).
  • Books
  • Federal Income Tax: Doctrine, Structure and Policy, 3d ed., with Joseph Dodge and Deborah Geier, 881 pages, with teachers manual, 399 pages (Lexis Nexis 2004).
  • Federal Income Tax: Doctrine, Structure and Policy, 2d ed., with Joseph Dodge and Deborah Geier, 830 pages, with teachers manual, 483 pages (Lexis Law Publishing 1999).
  • Federal Income Tax: Doctrine, Structure and Policy, with Joseph Dodge and Deborah Geier, 750 pages, with teacher’s manual, 404 pages (Lexis Law Publishing 1995). Reviewed in Jensen, Not Just Another Casebook, 68 Tax Notes 223 (1995).
  • Tax Aspects of Forming and Operating Closely Held Corporations, with Janet Spragens (Shepard's/McGraw-Hill 1992). 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 (Shepard’s/McGraw-Hill 1984), Listed as recommended in Pratt, Federal Tax Sources Recommended for Law School Libraries, 87 Law Library J. 387 (1995).
  • Miscellaneous
  • Treasury’s Unfinished Work on Corporate Expatriations, 150 Tax Notes 933 (2016), 81 Tax Notes International 673 (2016).
  • Territoriality in Search of Principles and Revenue: Camp and Enzi, with Robert J. Peroni and Stephen E. Shay, 141 Tax Notes 173 (2013), 72 Tax Notes International 155 (2013).
  • Worldwide vs. Territorial Taxation Debate: Response to Shields, Letter to the Editor (with Robert J. Peroni), 126 Tax Notes 537 (2010), 57 Tax Notes International 351 (2010).
  • Worldwide Taxation vs. Territorial Taxation: Framing the Debate, Letter to the Editor (with Robert J. Peroni), 110 Tax Notes 549 (2006).
  • Framing the Debate Over Worldwide Versus Territorial Taxation, Letter to the Editor, (with Robert J. Peroni), 41 Tax Notes International 349 (2006).
  • The United States Should Tax U.S. Corporations on Their Worldwide Income, with Robert J. Peroni and Stephen E. Shay, 21 ABA Tax Section Newsletter 14 (Fall 2001).
  • More Thoughts on the Capitalization vs. Deduction Conundrum, Letter to the Editor, 89 Tax Notes 417 (2000).
  • Taking Territorial Taxation to Task, Letter to the Editor (with Robert J. Peroni and Stephen E. Shay), 87 Tax Notes 447 (2000), 20 Tax Notes International 1778 (2000).
  • Territorial Taxation: Worth a Look But Not the Way to Go, Letter to the Editor (with Robert J. Peroni and Stephen E. Shay), 86 Tax Notes 1794 (2000), 20 Tax Notes International 1339 (2000).

Experience

  • 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