Monday, May 17, 2004

Lily Kahng (Seattle) has published Innocent Spouses: A Critique of the New Tax Laws Governing Joint and Several Tax Liability, 49 Vill. L. Rev. 263 (2004). Here is the conclusion:

The principal tax rationale for joint and several liability–marital unity–is little more than a fiction adopted by lawmakers and scholars in order to rationalize a political compromise between community property and common law states. Furthermore, the other, secondary justifications for joint and several liability are unsatisfactory at best. Nonetheless, with the fiction of marital unity deeply embedded in our tax system, joint and several liability for married joint filers is likely to remain the law. While it can sometimes promote legitimate goals of fairness and efficiency, as an examination of joint and several liability in tort, agency and fraudulent conveyance law reveals, it can also produce unjust or irrational results. Where possible, therefore, the new innocent spouse laws should be interpreted and, in some cases, reformed to alleviate these injustices and irrationalities.