Dennis J. Ventry, Jr. (UC-Davis) presents An Ownership Theory of Family Taxation at San Diego today as part of its Tax Law Speaker Series moderated by Karen C. Burke.  Here is the abstract:

This paper examines the historical and jurisprudential development of the principle that ownership determines federal taxation of families. It traces the “ownership equals taxability” principle from the late nineteenth century to 1930; that is, from the decades leading up to ratification of the Sixteenth Amendment to the U.S. Supreme Court’s decisions in Poe v. Seaborn and Lucas v. Earl. It is a story of the early federal income tax and its administration; of tax avoidance opportunities for families; of the nature of spouses’ legal interests as defined by state property laws; and of early tax enforcement efforts by the Treasury Department and Congress. It also a story of how the Supreme Court sought to protect the revenue and Congress’ taxing power by articulating an expansive definition of ownership for purposes of determining taxability that relied on indicia of ownership such as control, management, dominion, beneficial interests, equitable interests, enjoyment, and even a “flow of satisfactions” concept that tracked consumption tax principles more closely than income tax principles.

In the end, the paper removes the modern-day false barometer of marriage between a man and a woman as the basis of family taxation under the federal income tax. In its place, it reestablishes ownership principles grounded in Supreme Court jurisprudence as the historically and legally accurate gauge for family taxation. In so doing, it abolishes disparate tax treatments among different kinds of families—married, single, opposite-sex, same-sex, one-earner, two-earner—and paves the way for treating all families equally under the federal income tax.