Today's Law, Society, and Taxation panels at the 2023 Law & Society Association Annual Meeting:
Tax Advocacy & Tax Justice (Mirit Eyal-Cohen (Alabama; Google Scholar), Chair/Discussant):
Tax lawyers operate inside a system that often challenges traditional notions of zealous advocacy in lawyering. Further, decisions around tax law, tax policy, and tax lawyering must be made in the larger context of goals around social policy and desired social outcomes. The papers in this session examine both particular tax lawyers but also the larger issues faced by tax lawyers as a whole. Also considered is the role the tax law plays in affecting lawyers' actions and infuencing their decisions.
Steven Sheffrin (Tulane; Google Scholar), Disparate Impact in Tax and Law: What Can Tax Policy Learn from Disparate Impact Jurisprudence?:
In recent years there has been considerable scholarship demonstrating that aspects of the tax code have differential impacts across racial groups. Although the tax system is facially neutral across racial groups, specific provisions of the tax code may have differential impacts. This scholarship has been impactful and potentially contributed to the announcement by the U.S. Treasury of a novel project to analyze information about the racial composition of COVID economic impact payments. The Treasury also indicated that this was the beginning of a new initiative to track racial impacts of tax policy.
While this scholarship has demonstrated the existence of disparate impacts and potential horizontal inequities, it has made few connections to the extensive legal literature, both constitutional and statutory, on the broader role of disparate impact analysis for social policy. These issues have been highly contested and have reached the U.S. Supreme Court numerous times. The Court has wrestled with the implications of disparate impacts along several different dimensions, including the circumstances when disparate outcomes in certain proscribed areas can justify remedial actions and the limits of these actions.
The tax literature has largely ignored the insights from this broader legal debate. In this paper, I explore how the contours of the legal discussions can help frame the tax literature and assess the set of circumstances where apparent horizontal inequities should be a focus of tax policy and where they should not.
Costantino Grasso (Manchester Metropolitan; Google Scholar), Going Over To The Dark Side: Exploring The Controversial Aspects Of Tax Professionals’ Practice:
Going over to the dark side: Exploring the controversial aspects of tax professionals' practice.
Recent scandals such as the Pandora Papers (2021), FinCEN Files (2020), Paradise Papers (2017), the Panama Papers (2016), SwissLeaks (2015), and LuxLeaks (2014) have made evident that professionals play a key role as facilitators or enablers of abusive practices in the area of taxation.
This paper will investigate the inherent conflict of interests and corruption risks that are posed by the role played by professionals as crucial intermediaries between taxpayers and authorities, and explore both active and passive forms of unethical behavior through which tax professionals may facilitate tax abusive practices (e.g., turning a blind eye or adopting a laissez-faire approach).
Similarly, conflicts of interest exist where senior academics advise governments on national taxation structures and regulatory frameworks while also holding positions on boards of directors subject to those self-same rules. In other cases, the judiciary may rely on the expertise of tax scholars even though those scholars hold secondary positions in the tax advising industry, and are therefore incentivized to propose legal arguments in their scholarly work that further the interests of their private clients.
Finally, the article will investigate how professionals may exert political influence or other forms of pressure that may work to shape and weaken regulatory and organizational environments, leading to the implementation of self-regulatory regimes rather than mandatory ones, to the adoption of an unnecessary level of complexity in regulation, to the introduction of obstacles to or limits on the criminalization of tax abusive practices (e.g., lobbying against the introduction of effective transparency regimes), or to the adoption of legal instruments favorable to tax evaders such as tax amnesties and negotiated resolutions.
Jennifer Prusak (Vanderbilt), Inequality and Property Tax Exemptions: How State Tax Laws Jeopardize the Supply of Affordable Housing (with Lauren Rogal (Vanderbilt)):
Nonprofit affordable housing providers rely in large part upon state and federal tax breaks to fund their operations. The makeup of many states' revenue codes, however, is at cross-purposes with society's compelling need to providing affordable housing for the most vulnerable. Most 501(c)(3) organizations qualify for state property tax exemptions, but a tiny carveout frequently exists for a large subset of affordable housing providers. Unless a 501(c)(3) affordable housing provider provides housing exclusively for the elderly or disabled, in a number of states that nonprofit cannot avail themselves of a property tax exemption. This hinders their ability to provide affordable housing to those who need it most.
This paper will explore this problem, using inequalities within Tennessee's tax code as a case study. It will discuss the role 501(c)(3) affordable housing providers play in combating the affordable housing crisis generally and in Tennessee specifically; estimate the amount of revenue lost to Tennessee 501(c)(3) affordable housing providers because of this property tax loophole; summarize current lobbying efforts in Tennessee to make that state's tax code more equitable for all nonprofit affordable housing providers; and provide broad policy suggestions for other states looking to make their tax codes more equitable.
Fred B. Brown (Baltimore; Google Scholar), Should the Federal Government Help States and Local Governments Pay for Police Misconduct Through Tax-Exempt Bonds?, 41 Va. Tax Rev. __ (2022):
Following instances of alleged police misconduct, survivors and victims' families typically bring claims for damages, which may result in judgments or settlements paid by the states and local governments that employ the police officers involved in the alleged misconduct. Often these settlements and judgments are funded by tax-exempt bonds, which results in an effective tax subsidy to the jurisdictions issuing the bonds. Thus, the funding of police misconduct settlements and judgments via tax-exempt bonds raises the issue of whether the federal government should be subsidizing the payment of these settlements and judgments. This article analyzes this issue and considers a possible measure for restricting the use of tax-exempt bonds to fund police misconduct settlements and judgments. Under this measure, states and local governments would be permitted to use tax-exempt bonds to finance police misconduct payments, but only if the state or local government issuing the bond complies with certain federal policies for law enforcement training, hiring, and the like, which are designed to reduce police misconduct.
Joseph Thorndike (Tax Analysts), Stanley Surrey: New Dealer, Tax Prodigy, Treasury Lawyer:
Before Stanley Surrey could become "the greatest tax scholar of his generation," the highest ranking tax official of the Kennedy and Johnson Administrations, or the architect of both American and international tax systems in the decades after World War II, he first had to learn the ropes. This essay explores the early years of Surrey's career, examining his entry into the world of tax policy during the 1930s and 1940s.
When he graduated from Columbia law school in 1932, Surrey had a nodding familiarity with tax law but he was no expert. Indeed, he spent several years working chiefly on labor law, first at the National Recovery Administration and later the National Labor Relations Board. In both jobs, Surrey solidified his identity as a New Deal liberal. But it was only in 1937 that he brought those politics to the Treasury Department–and to tax policy.
1937 was a good time for a young lawyer interested to join the Treasury. The department was in the midst of an intellectual and administrative transformation, as Secretary Henry Morgenthau, Jr. recruited new legal and economic experts to bolster Treasury's capacity for independent policy formulation. For decades, the department had deferred to Congress in the writing of tax laws. Morgenthau hoped to change that.
Treasury experts began building the intellectual foundations for a true watershed in American fiscal history: the transformation of the personal income tax from a "class tax" to a "mass tax." It would take a crisis to make that actually happen, specifically World War II. But in the late 1930s, Treasury was already planning ambitious tax reforms, convinced that existing fiscal structures were inadequate to the task of modern governance.
Like his new colleagues, Surrey recognized that fundamental tax reform was about more than more than revenue. It was a political and ideological imperative, rooted in the notions of fairness and economic justice that underpinned the New Deal more broadly.
Digital Tax Administration (Borbala Kolozs (Corvinus University of Budapest), Chair/Discussant):
Just like all other areas of law, the tax law faces new and different challenges in contemplating how best to respond to the worlds of artificial intelligence and crypto-currencies. The papers on this panel investigate these challenges and others and propose solutions that solve some of the most intractable elements of the problems. At the same time, additional potentially as yet unconsidered difficulties are also identfied.
Orly Mazur (SMU; Google Scholar), Cooperative Federalism and Digital Tax Harmonization in the United States (with Adam Thimmesch (Nebraska; Google Scholar)):
This article examines the digital tax landscape at the U.S. subnational level to demonstrate that current state efforts to modernize and harmonize the state and local tax systems are unlikely to succeed. The competing interests of industry, states, and those who administer the tax systems pose serious challenges to meaningful tax reform. Thus, some form of federal intervention is necessary to secure the harmonization of states' laws in the digital tax realm. However, federal efforts to improve the uniformity of state tax laws through preemption legislation raise significant practical and policy concerns and undermine state tax sovereignty. Thus, this Article argues that the traditional dual and preemptive federalism approaches to state and local taxation issues are no longer working and that a new approach for federal intervention in the tax realm is necessary. It proposes that policymakers develop a cooperative federalism framework where the federal government supports harmonization and economic efficiency but leaves substantive tax rule-making to the states. This approach would better harness the strengths of both the federal and state governments in achieving multilateral, state-level digital tax reform and would help bring states closer to closing the digital divide in state taxation.
Amanda Parsons (Colorado; Google Scholar), Taxing Taxonomies: Tax Law’s Struggle to Render Legible the Digital Economy:
The question of how law should respond to cryptocurrency and blockchain technology has captured the attention of legal scholars. This includes tax law scholars such as Omri Marian and Manoj Viswanathan, who have addressed questions of how cryptocurrency and blockchain should be taxed as well as administrative challenges that this decentralized technology brings. This Article identifies the uncertainty surrounding the taxation of cryptocurrency and blockchain as the most recent and stark example of a more fundamental challenge that digitalization has brought to tax law–the challenge of rendering legible new technologies in order to categorize them.
Our tax system is built around categories. Tax law groups economic activities into categories based on salient characteristics in order to determine if, when, where and how they should be taxed. In order to appropriately categorize a new economic activity, stakeholders must first render that economic activity legible. They must be able to "read" the activity and distill its salient characteristics to determine how it should be taxed.
The digital economy has sparked a crisis of legibility in tax law. As new technologies rapidly reshape our economic environment, relevant stakeholders must continually determine how to categorize these activities. This means that they must render those activities legible, a task for which they have thus far proven to be ill-equipped. Exploring the example of blockchain taxation, this Article chronicles the ways in which failures in achieving legibility have impeded the development of a coherent approach to taxing the digital economy and accompanying threats to tax law's legitimacy. It then explores possible solutions. It first considers ways to improve relevant legal institutions' capacities to render new technology legible. It then considers changes to tax law's current approach to and reliance on categorization, changes which would relieve pressures of achieving legibility.
Neil Buchanan (Florida; Google Scholar), The Democracy Deficit and the Future:
Future generations will inherit a severely degraded political system compared to the systems that dominate many countries today. Indeed, the United States and other countries that have long taken their pluralist democracies for granted might very well become illiberal and authoritarian — if not full-on fascist — polities within the next decade. If that happens, what will it take for our children and grandchildren to undo the damage that Baby Boomers and Gen-X'ers have inflicted on future generations? How will they do that, even as they are forced to deal with the intensifying climate crisis?
Danshera Cords (Albany; Google Scholar), The Over/Under of IRS Oversight Twenty-Five Years After the Internal Revenue Service Restructuring and Reform Act of 1998:
The Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998) brought sweeping changes to the administration and structure of the IRS, in the name of creating increased taxpayer rights. In addition to creating new, and strengthening existing, taxpayer rights, the new act was intended to create additional, and therefore more effective, oversight of the IRS. The act also sought to strengthen some of the existing oversight.
RRA 1998 has been heavily criticized on one hand for not going far enough to create meaningful taxpayer rights in many instances, while at the same time creating nearly insurmountable administrative hurdles that prevented the IRS' primary objective of collecting tax revenue and effectively, efficiently, fairly administering the tax system. In addition, it has required regular, substantial revision.
To the extent that RRA 1998 provided additional oversight of the IRS, there remain persistent calls for yet more oversight. As we approach the twenty-fifth anniversary of the enactment of this legislation, it is time to revisit IRS oversight, looking holistically at the myriad bodies that review its work, their functions, and the constituencies to which they report. This Article considers the changes made in RRA 1998, recent proposals for additional oversight of the IRS, and recommends a reconsidered approach to IRS oversight to improve the tax system.
Economic "Efficiency" & Tax Responsibility (Neil Buchanan (Florida; Google Scholar), Chair/Discussant):
While many tax analyses contemplate the "economic efficiency" of particular decisions, that analysis is just one part of what is at stake when tax policy is enacted. The papers in this session moved beyond the concept of economic efficiency to consider other issues involved in the successful imposition and administration of good tax policy. This approach considers tax as just one part of the larger goals of political decision-making, and thinks about tax within that context.
Lynn Lu (CUNY; Google Scholar), Rational Basis Reality Check (with William Jawde (CUNY;)):
A recent report of the Alliance for Justice suggests that federal judges with professional or lived experience representing lower-income clients are more likely to consider economic justice in decisionmaking. Multimethod analysis can show whether race or ethnic background may also correlate with willingness to make class issues visible. The U.S. Supreme Court's 2022 decision in U.S. v. Vaello-Madero presents one opportunity to explore when and how judges' application of rational-basis scrutiny includes engagement with economic justice considerations.
The case reached the Supreme Court only because the petitioner, a U.S. citizen subjected to a proceeding to recoup overpayment for benefits received after he moved from New York to Puerto Rico, managed to find counsel for the English-only federal court. Vaello-Madero prevailed on an Equal Protection defense seemingly summarily foreclosed by precedents permitting, on other grounds, differential tax and welfare treatment in the territory, in the process inspiring a companion class action. The First Circuit, in an opinion by the late Judge Torruella, the first Puerto Rican to sit on the Court of Appeals, affirmed the decision, skewering the purported rational bases for differential treatment of U.S. citizens who happen to reside in Puerto Rico.
The hopes of such citizens for rational treatment under the law, ended, however, before the Supreme Court, as 8 out of 9 justices found their exclusion from federal disability benefits justified in the governance of a colonized territory. Only Latinx Justice Sotomayor delved into the economic hardship imposed by federal law and questioned why differential tax treatment of a territory necessarily permits differential provision of safety net protections. Justice Sotomayor's dissent demands that we see what has remained invisible, as tax or distributive justice issues are usually left to the political sphere, with deference to legislative enactments, however illogical.
Blaine Saito (Northeastern; Google Scholar), Tax Contrarians:
A major concern involving taxation in general and tax regulations in particular is the real or perceived sense of capture.
A way in which to limit the effects of capture is employ regulatory contrarians. Ironically, the tax world already has a significant contrarian, the National Taxpayer Advocate, who focuses on procedural matters for lower and moderate-income taxpayers. But while initially held as the standard for the literature on regulatory contrarians, the NTA and tax in general has fallen behind. Furthermore, while the NTA plays an important role, most of its focus is procedural without a focus on substantive parts of tax legislation and regulation.
This article advocates for both the development of a new Office of Tax and Democracy at Treasury to address the democratic deficit in the substantive tax policies, and also a greater set of authority for the NTA to address procedural problems. These two offices should help to combat the various forms of capture by having greater say in the policies and procedures produced at the administrative level, including pre-clearing regulatory and potentially subregulatory guidance. These offices should also be empowered to reach out to communities and groups that are often not participating in any part of the tax policymaking process, like minorities, the working class, or other marginalized groups and encourage the development of capacity and work to understand their positions and advocate for them within the government structure. They should also in their reports to Congress, not only say issues, but produce proposals for changes to address problems that they identify. In keeping the two separate too, there can be a specialization boon, but the two offices, should have means to which they can coordinate when issues overlap as well.
Yan Xu (New South Wales; Google Scholar), Tax with Corporate Social Responsibility?:
It goes without saying that company directors are expected to ensure their company complied with the law. Separately, there are growing expectations that they should do more than merely comply with the letter of law but go further and adopt policies that are socially responsible even if they may reduce profits. Thus, we criticize companies that pour CO2 into the atmosphere when they could abate it and commend those who do, and we criticize those that destroy aboriginal sacred sites, even if they have the right.
The idea that companies have a moral responsibility to act in a socially responsible manner, commonly referred to as corporate social responsibility (CSR), seems clear cut in cases such as these. Far more obscure is how CSR might manifest itself in cases of international tax avoidance. While CSR is commonly understood to require corporations to act "over and above their legal obligations", it is unclear how and when a company could be expected to accept a tax liability beyond what the law requires. There is no doubt that abusive tax behaviour and international tax avoidance have caught attention of the public and policymakers, calling for responsible tax practices, but it remains uncertain whether the concern is with corporate leaders taking advantage of opportunities to minimise their tax liability or a tax system in which this is possible.
The paper considers these questions through an exploration of the intersection of CSR theory and international tax principles. It argues that a modern theory on CSR, the Team Production theory, could provide a necessary conceptual foundation for making tax, more specifically corporate income tax, part of the CSR framework, and that CSR based on the Team Production theory can be applied in a way that is consistent with the international tax principle post-BEPS, which aligns taxation of profits with the place where economic activities are performed and value is created.
Theodore Seto (Loyola-L.A.; Google Scholar), Two Common Errors in the Invocation of Tax Deadweight Loss:
Deadweight loss is the loss of surplus that might otherwise be generated through market exchanges of goods or services but for some market imperfection or governmental action. Taxation is always thought to produce deadweight loss. In a welfarist normative frame, the resulting loss of surplus reduces aggregate social welfare and is therefore normatively undesirable. This paper explores two common errors in the invocation of tax deadweight loss.
First error: The concept of deadweight loss was first applied to analyze "waste" in the context of monopoly pricing, where any resulting losses are truly "deadweight." When the same concept was ported into the analysis of taxes, however, analysts sometimes made a move inconsistent with the baseline assumption of microeconomics: that decision-makers are rational and their decisions welfare-maximizing. Taxes are the price we pay for public goods. A decision by voters to impose taxes is a decision to purchase public rather than private goods. In the absence of evidence to the contrary, microeconomics would normally assume that this decision is just as rational and welfare-maximizing as a decision to purchase apples rather than oranges. If so, then the "deadweight" aspect of "tax deadweight loss" is simply an illusion created by analysts' decision to focus on only one half of the transaction – the loss of surplus triggered by reduced purchases of private goods – and ignore the increase in surplus triggered by increased purchases of public goods.
Second error: Surplus is not the same thing as welfare. Indeed, surplus and welfare are not always linearly or even positively related. This means that larger tax deadweight losses do not necessarily mean larger losses of welfare, and smaller tax deadweight losses do not necessarily mean smaller losses of welfare. To claim that taxes that produce large losses of surplus are per se normatively worse than taxes that do not ignores this unsolved technical problem.
International Taxation (Jennifer Bird-Pollan (Kentucky; Google Scholar), Chair/Discussant):
Different countries around the world address questions of tax fairness in different ways, and have different concerns based on constitutional differences or other particularities of the nations in question. The papers in this session consider the global consequences of international tax law and tax competition, and also discuss how particualr nations have responded in the tax arena to challenges faced in other areas of governance.
Mtendeweka Mhango (Limpopo; Google Scholar), A Quest To Define Funeral Policies in Lesotho:
In most countries of the Southern African Development Community (SADC) funeral policies are defined and treated as life insurance policies both from a regulatory and tax perspective. For example, in Botswana, the authorities have established a class of long-term insurance business, which includes disability business, health business, fund business, life business and sinking fund business. Funeral policies fall under life business category. The position is no different in South Africa. In Lesotho, the legal position of how funeral policies are treated from a regulatory point of view is uncertain because the Central Bank of Lesotho, the regulator of insurance business, has not yet defined funeral policies despite being empowered and required to do so under section 2 of the Insurance Act 2014. This paper examines, from a comparative perspective, how other jurisdiction in the SADC regulate funeral policies with a view to developing a model for Lesotho. Specifically, it examines whether and how funeral policies are recognized as long term insurance products. Lesotho is one of the most unequal countries in the world with the majority of the people living below the poverty lines. This paper, therefore, argues that funeral policies in Lesotho should be deemed as life insurance products and treated as such from a tax and regulatory perspective because this will likely bring down the cost of long-term insurance products, increase access to these products, and promote equality and social security among citizens.
Borbala Kolozs (Corvinus University of Budapest), Taxation in the Times of Covid:
This paper tries to show the reactions of governments all over the world to problems related to covid. This pandemic irrevocably changed our lives and also made us realize that old international taxation principles do not work any more. The focus of this paper is mostly on individuals but there are a couple of details about corporations as well.
Joseph Fleming, Jr. (BYU), What's the Problem That Prompted Pillar 2 and Is There a Better Solution?:
OECD Pillar 2 is intended to constrain tax competition by less-developed countries and by low-tax developed countries (Hungary and Ireland for example). This tax competition arose because most OECD countries adopted exemption systems that allowed their corporate residents to do business in low-tax countries without facing a home country tax and because the US allowed residual tax on income earned in low-tax countries to be substantially reduced through deferral and cross crediting. The significant obstacles to adoption of the Pillar 2 minimum tax mean that it is an unlikely solution. Moreover, it would leave substantial room for tax competition. A better way forward is for countries to unilaterally adopt worldwide taxation of their corporate residents, with a foreign tax credit limited to the foreign tax on foreign-source income, without deferral, and set at each country's respective regular corporate rate.
William Byrnes (Texas A&M; Google Scholar), “There is no trade on a dead planet.” Greenpeace. How the EU can save the world by (re)negotiating a fair trade agreement with Mercusor (i.e. Brazil):
First, why the Mercosur trade deal is vital to Brazil but critical for the EU? Second, what's in the current Mercusor-EU trade deal? Third, Why is the current deal is stalled? And finally, I'll conclude by explaining how the EU can save the world by saving the Amazon rainforest – by agreeing to a fairer Mercosur trade deal with President-Elect Lula by the winter of 2023. Because, as Greenpeace has astutely observed: "There is no trade on a dead planet." Besides, the impact of the Russian war against Ukraine will drag on through 2024 forcing Europe to replace substantial agricultural, raw material, and commodity sources. The EU wants to avoid more exposure to China.
The EU is Mercosur's number one trade partner. The EU exports more than twice the value of services it imports: €23 billion supplied by EU firms to clients in Mercosur versus €11 billion delivered to EU clients from Mercosur countries. Moreover, the EU is Mercosur's number one investment partner, holding €330 billion of investment stock, with more than 95% of that FDI in Brazil. The Mercosur trade deal would eliminate over time the import duties on more than 90% of the goods that EU companies, such as shoes, wine, and olive oil from Spain, exported to Mercosur, primarily Brazil. And vice versa, the agreement would eliminate import duties on more than 90% of Mercosur goods exported to the EU, such as Brazilian agriculture.
In the four years of former President Bolsonaro, the Amazon has become a net emitter of carbon, a billion tons of carbon dioxide a year mostly caused by fires, many deliberately set to clear land for beef and soy production. The EU has a short fuse opportunity to do the right thing, assist Brazil in developing high-value-added goods, and move it away from a colonial hostage of raw materials, burning the Amazon, and pushing the earth's temperature up faster.
Optimal Fiscal Policies and Oversight (Shu-Yi Oei (Duke; Google Scholar), Chair/Discussant):
In addition to creating a robust and equitable system of taxation, that fairly identifies the subjects of the tax and appropriately distributes the tax burden among all potential taxpayers, governments must also find ways to fairly administer that tax system and must oversee that administration in a way that recognizes all the differences acknowledged by the tax system itself. The papers in this session identify a variety of ways these challenges can be both identified and addressed.
Diane Kemker (DePaul & Southern), Do Black Taxpayers Matter? A Critical Tax Analysis of IRS Audit Practices:
The Earned Income Tax Credit, a federal anti-poverty program administered through the tax system, provides a total of about $65 billion a year in "refundable credits" (a payment in excess of tax liability) to more than 25 million working low-income taxpayers, who receive an average of about $2000 (the precise amount depends on their number of dependents). Its complex eligibility rules produce persistently high error rates, which are in turn used to justify high audit rates and a grossly disproportionate share of IRS enforcement activity. Because of the small dollar amounts involved, EITC audits are not lucrative, although they are also not terribly costly (as most are conducted by correspondence and not contested). EITC audits are pre-refund, forcing poor taxpayers to wait months even for the undisputed portion of what they claim. Those who are audited are deterred from claiming it again; some mistakes can disqualify taxpayers from receiving it in future years. Given all this, perhaps it is not surprising that the EITC is underclaimed (about 20% of the eligible do not claim it). Making matters worse, despite the formal race-neutrality of the Internal Revenue Code and all IRS policies and practices, EITC audit practices have grossly racially disparate effects. America's poorest, Blackest counties are audited at some of the very highest rates. Black EITC claimants, and especially Black fathers claiming the EITC, are the likeliest taxpayers in America to be audited. Recent work by economists has confirmed what many critical tax law scholars have long suspected: that the same systematic racial inequities long identified and decried in the allegedly race-blind criminal justice system afflict the tax enforcement system as well. This Article breaks new ground by using critical theory, the work of Michel Foucault, Critical Race Theory, and intersectional analysis.
Tessa Davis (South Carolina), Imagining the Body in Tax:
Imagining the Body in Tax is the title of my current book project. At the conference I intend to present a chapter from the book that 1) identifies where metaphors of the body have arisen in tax law and policy 2) describes the role those metaphors have played and continue to play in shaping key concepts in tax like ability to pay and the tax law approach to human capital and 3) makes recommendations regarding how tax could adopt a more cohesive set of values in its orientation to the body.
Ari Glogower (Northwestern; Google Scholar), The Constitution and Congress’s Taxing Power (with Jonathan Choi (Minnesota; Google Scholar)):
This Article considers the choice between formalist and substantive constitutional constraints on Congress's taxing power. Since the 1895 Pollock case, the Court has primarily adopted a formalist interpretation of Congress's Article I Section 8 taxing power, by allowing Congress to tax certain bases but not others. As this Article argues, this formalist approach has bred inconsistency and uncertainty in the law, and also shields the wealthiest taxpayers from progressive taxation. This Article then argues that the constitutional constraints on Congress's taxing power should instead be defined through substantive principles, which would instead focus on the degree of taxation and the qualities of the activities subject to taxation.
Nyamagaga Gondwe (Wisconsin; Google Scholar), Emergency Exit: The Financial Assistance Landscape for Women Leaving Abusive Spouses:
Leaving an abusive partner can be a life-saving intervention for a survivor of intimate partner violence (IPV). As survivors attempt to leave, they face a heightened risk of physical violence. One study claims that 75% of women who are killed by an intimate partner are killed as they attempt to leave or after they have left. This means that when a person decides to leave an abusive relationship, it is urgent that they can quickly access whatever tools they need to establish a safe distance from their abuser.
This project examines the role of the Earned Income Tax Credit (EITC) and Temporary Assistance for Needy Families (TANF) as financial assistance interventions for people navigating survivor resources. Twenty-nine states and D.C. have adopted a state level EITC that supplements the federal EITC. 42 states and D.C. opt-in to the Family Violence Option under TANF. While these programs could potentially make a significant difference to a survivor as they attempt to establish a life separate from their abuser, the programs' structure may not promote the kind of urgency that is necessary to help the survivor make a clean, safe exit in the initial stages of leaving their partner.
In a prior work, I argued that when public financial assistance programs like the EITC fail to acknowledge uncompensated care work, they amplify women's vulnerability.1 Here, I argue that when unpaid care labor is disregarded as an eligible form of labor for financial assistance programs, that failure at the policy design level becomes a negative mitigating factor in whether-and for how long-a survivor can sustain a safe distance from an abusive partner.
