This week, Assaf Harpaz (Georgia; Google Scholar) reviews a new work by Alex Raskolnikov (Columbia; Google Scholar), Taxation and Formal Equality, 104 Wash. U. L. Rev. __ (forthcoming 2027).

Most modern capitalist democracies embody the idea that law should be formally equal, making no formal distinction based on individuals’ material resources. In this insightful and thought-provoking piece, Alex Raskolnikov examines how formal equality shapes the design of the taxes-and-transfers system.

The Article begins by introducing the concept of “formal equality” and its role in the legal architecture of modern capitalist democracies. Formal equality, which can generally be traced to Greek philosophy, means that laws should be general: the same for both rich and poor. The concept has persisted throughout history in different areas of law. For example, everyone must comply with property, traffic, and contract laws. Outside of the tax-and-transfer system, exceptions to formal equality are difficult to find. And while transfers are formally equal when they are universal, means-tested transfers (that distinguish among material resources) are not formally equal. The author explains that, in both the U.S. and Europe, means-tested social transfers represent a relatively small share of government social spending, demonstrating the influence of formal equality in transfer programs.

The Article then turns to analyzing formal equality and taxes. Indirect taxes, like consumption taxes (e.g., sales taxes), are de facto formally equal because they are not imposed on people and do not explicitly differentiate based on individual circumstances. Direct taxes, in contrast, are more nuanced. A poll tax, which collects the same amount from every taxpayer, would be a formally equal direct tax, yet could not plausibly collect sufficient revenue to support a modern income tax system. The status of proportional (flat-rate) taxes is disputable, especially if they include a low-income exemption. The author notes that most legislators, judges, and ordinary citizens view these as uniform or proportional, despite the fact that a graduated rate structure is what results from adding a zero-bracket to a proportional tax. The author recognizes this tension, and concedes there is no satisfying way to distinguish a tax exempting the poor from one targeting the rich. The popularity of proportional taxation is generally rooted in the same intuition that underlies formal equality, as reflected in the uniformity provisions of U.S. state constitutions. The author ultimately treats a proportional income tax as formally equal, and may decide to elaborate more on this choice.

Of course, many tax systems are supported by progressive income taxes with increasing marginal rates, which do not conform to functional equality. Inheritance and wealth taxes are generally not proportional either, because they apply only above high thresholds, making them formally unequal. In so doing, tax law purportedly departs from formal equality. Here, the author offers one of the Article’s most compelling insights: formal equality may explain the widespread, global decline of progressivity and taxes on the rich.In many developed countries, inheritance tax rates have declined, income taxes are flatter at the top than they used to be, and wealth taxes have almost disappeared. Moreover, in U.S. states, income taxes are less graduated than federal ones, proportional in several states, and absent altogether in others, which arguably better reflects the individual preferences of taxpayers. The author explains that the intuitive appeal of formal equality provides a single explanation for this paradigm.

The author then examines formal equality in the law of transfers. Many transfer programs assist the most economically vulnerable and include income tests, asset tests, or both. Nevertheless, formally equal transfers are greater than unequal ones both in the EU and U.S. The author’s broad conclusion is that formal equality exerts considerable influence over the law of taxes and transfers, and turns to the normative question of how taxes and transfers should be understood through the lens of formal equality. The political appeal and intuitiveness of formal equality have arguably contributed to less progressive policy outcomes, but this need not necessarily be the case. The clearest examples are the carbon tax and the VAT, both of which are generally regressive when viewed in isolation. Yet social programs financed by VAT revenues can reduce overall economic inequality, as the experience of many European countries illustrates.

In the U.S., the author points out that the federal tax system combines violations of formal equality with indirect regressive redistribution, with the most prominent example being the realization requirement. The author therefore considers reforms that would more visibly conform to formal equality while producing substantively progressive effects. Possible candidates include mark-to-market taxation, taxing capital gains at ordinary income rates, replacing deductions with credits, including gifts and bequests in the recipient’s income, eliminating the Sec. 1014 step-up in basis at death, and increasing the corporate tax rate. While the author briefly discusses some of these proposals, there may be room to further develop this discussion. For example, many prominent mark-to-market proposals would apply only to rich taxpayers. In addition, if one of the main benefits of formal equality is its intuitive appeal, this raises an interesting question of whether proposals such as a mark-to-market tax, the elimination of the Sec. 1014 benefit, or the replacement of deductions with credits would share that same intuitive appeal, even if they can be perceived as complying with formal equality. The Article concludes by extending the analysis to social transfers, arguing that formally equal transfers may still be targeted, so long as the relevant criteria are not explicitly tied to income or wealth.

The Article offers a compelling framework for understanding the relationship between formal equality and tax policymaking. Most importantly, it shows that greater progressivity need not depend on even greater departures from formal equality, and identifies several ways in which tax-and-transfer policy might pursue distributive goals while remaining attentive to the intuitive appeal of formally equal rules.

Here is the rest of this week’s SSRN Tax Roundup:

Theodocia Adusei-Manu & Julia Akosua Owusua Fordjour (Pentecost U. Coll., Accra), Assessing the Role of Environmental Tax in Promoting Sustainable Development (Sept. 1, 2026)

Zeba Ahmed (Hamdard Inst. Legal Stud. & Rsch.), Algorithmic Risk Profiling Under GST: Transparency, Natural Justice and Taxpayer Rights in India (Sept. 29, 2026)

Zeba Ahmed (Hamdard Inst. Legal Stud. & Rsch.), Artificial Intelligence and Automated GST Enforcement in India: Legal Challenges, Due Process and Taxpayer Rights Zeba (Sept. 28, 2026)

Zeba Ahmed (Hamdard Inst. Legal Stud. & Rsch.), Input Tax Credit Reversal Under Section 16(2)(c) of the CGST Act: Reconciling Revenue Protection with Taxpayer Rights and Constitutional Fairness (Sept. 11, 2026)

Andrew D. Appleby (Tennessee), Constitutional Commandeering, 62 Wake Forest L. Rev. 1 (2026)

Reuven S. Avi-Yonah (Michigan) & Doron Narotzki (Akron, Daverio Sch. Acct.), When Does Tax Reform Happen?, 123 Tax Notes Int’l 1457 (Aug. 31, 2026)

Conor Clarke (Wash. U.) & Noah Hertz Marks (UNC), Tax Exceptionalism After Loper Bright, 192 Tax Notes Fed. 1963 (2026)

Maarten Floris de Wilde (Erasmus U. Rotterdam), From Multilateralism to Strategic Realism: A Proposal for a Corporate Tax 2.0 (July 1, 2025)

Lee Anne Fennell (Chicago), Slices and Lumps: Division and Aggregation in Law and Life (Sept. 16, 2019)

Brian D. Galle (UC Berkeley), David Gamage (Missouri) & Darien Shanske (UC Davis), Analysis of the Impacts of Propositions 41 and 42 on California Public Finance (Sept. 9, 2026)

Brian D. Galle (UC Berkeley), David Gamage (Missouri) & Darien Shanske (UC Davis), Proposition 40: The 2026 Billionaire Tax Act Section-by-Section Summary (Sept. 21, 2026)

Klaus Gottlieb (Monterey Coll. L.), Choosing Between a CRAT and a CRUT—An Analytical Comparison of Charitable Deductions and Payment Rights (Sept. 16, 2026)

Hans Gribnau (Tilburg), Jane Frecknall-Hughes (U. Nottingham) & Onno Ydema (Leiden U.), Examining the Influences on English Excise Taxes, After 1643, in 12 Studies in the History of Tax Law 55 (Dominic de Cogan & Peter Harris eds., 2025)

Hans Gribnau (Tilburg), Tax Advisers as Gatekeepers (November 12, 2025)

Eldar Hasanov, When Homes Become Tax Havens: Comparing Principal Residence Taxation in Canada and the United States (Sept. 2, 2026)

Daniel J. Hemel (NYU), Ordinary Loss Harvesting: A Tax Shelter of Treasury’s Own Making, 192 Tax Notes Fed. 2191 (Sept. 21, 2026)

Emer Hunt (U. Coll. Dublin), The Tax Relationship Between Ireland and Apple: Under the State Aid Microscope, 147 CJEU—Recent Developments in Direct Taxation 2024 (Georg Kofler et al. eds., 2025)

Tolkin Kholbazarov (U. World Econ. & Diplomacy), Applicable Law in Cross-Border Commercial Contracts: Party Autonomy and the Uzbek Framework in Comparative Perspective (Sept. 14, 2026)

Tolkin Kholbazarov (U. World Econ. & Diplomacy), From Formal Activity Classification to a Substantive Business Model: Qualification of Venture Funds and Accelerators Under the Special Legal Regime for IT Sector Participants in Uzbekistan (Sept. 19, 2026)

Ayomikun Kuewumi (Adekunle Ajasin U.), Advance Rent and Freedom of Contract in Nigeria: A Comparative Appraisal of Statutory Restrictions on Multiple Years’ Rent (Sept. 24, 2026)

Philipp Macketanz (TRR 266 Acct. for Transparency) & Ralf Maiterth (TRR 266 Acct. for Transparency), A Critical Assessment of Tax Activists’ Case Studies on Tax Avoidance by German Multinationals, TRR 266 Acct. for Transparency Working Paper Ser. No. 256 (Sept. 30, 2026)

Anirban Majumdar (InnovationStrat Consulting, LLC), The Economics of the 351 Exchange: Optimal Seeding of a Tax-Deferred ETF Under Concentration Constraints (Sept. 23, 2026)

Andrew P. Morriss (Texas A&M) & Charlotte Ku (Texas A&M), Evolving Networks: Information Exchange’s Reshaping of Global Finance, 35 J. Transnat’l L. & Pol’y 29 (2026)

Michael Motala (Tulsa), Global Corporate Tax Governance: Crisis, Consensus, and Revolution (June 4, 2026)

Michael Motala (Tulsa), Tax Sovereignty and Investor Protection: Why the Proposed Global Minimum Tax Is Not the Final Frontier for Corporate Tax Arbitrage, 16 Int’l Org. Rsch. J. 99 (2021)

Nicholas Nassim, Returns Above Replacement: A Claim on the Passive Return to Capital (Sept. 17, 2026)

João Félix Pinto Nogueira (Int’l Bureau of Fiscal Documentation), Residence for Corporate Income Tax Purposes—General Report, in Residence for Corporate Income Tax Purposes 19, João Félix Pinto Nogueira ed., 2025)

João Félix Pinto Nogueira (Int’l Bureau of Fiscal Documentation), Tax Administration and Technology: From Enhanced to No-Cooperation?, in Digital Transformation of Tax Administrations in the European Union 51 (Cristina García-Herrera Blanco & Álvaro Antón Antón eds., 2023)

Emmanuella Ononenyi (Nnamdi Azikiwe U.), Taxation of the Digital Economy in Nigeria as a Tool for Economic Development: Challenges and Prospect (Sept. 2, 2026)

Ugochukwu Onyeyiri (U. Nigeria, Nsukka), Assessing the Commercial Impact of the Economic Development Tax Incentive in M&A Transactions in Nigeria (Aug. 3, 2026)

Orli Oren-Kolbinger (Oregon), Judging Women: Benevolent Sexism and Innocent Spouse Relief in the United States Tax Court, 28 U. Pa. J. Bus. L. 49 (2025)

Michal Radvan (Masaryk U.) & Robert Lizak (Slupsk Pomeranian U.), The Critical Role of Effective Tax Rates in Using AI to Reduce the CIT Gap—A Comparative Analysis of Poland and the Czech Republic, 63 Prawo i Więź 361 (2026)

Amedeo Rizzo (Oxford), E-Compliance and Emerging Technologies in Tax Law: A Comparative Legal Inquiry Between the E.U. and the U.S., Stanford-Vienna TTLF Working Paper No. 157 (Aug. 21, 2026)

Rosalia Rosal (U. Santo Tomas), Cash Mules, Tax Evasion, and Fictitious Insurance: Financing Wish Bus and UNTV (Sept. 14, 2026)

Brian Studniberg (Henein Hutchison Robitaille LLP), A Milestone or a Millstone? Does Husky (FCA) Clear the Air over Beneficial Ownership in Tax Treaties?, 74 Can. Tax J. 199 (2026)

Ivan Martin Jimenez Velazquez, Private Tax Arrangements and Public Tax Procedure: Authority, Finality, and Entitlement After a Transaction—A Tax Recognition Framework for Post-Transaction Tax Controversies (Sept. 18, 2026)

Siddhi Widyaprathama (Juwono Widyaprathama & Rekan), The Attribution Problem (Sept. 11, 2026)