Good Analysis of a Bad Situation: Federal Tax Administration in the 2020’s

Aug 14, 2026 Charlotte CraneAdd a Comment

Charlotte Crane

Michael Schler thinks the prognosis for the federal income tax, at least as it is currently administered, is not good. In The State of the Federal Income Tax System: Poor, he outlines many of the problems federal tax administration currently faces. Most of these problems are worsening as the foundations of administrative law more generally are challenged in the federal courts and in Congress.

Even with the enormity of the substantive law itself, those teaching income tax in law school cannot consider themselves masters of their subject without a firm understanding of  the legislative and the administrative procedures that produce it. Imparting to young lawyers a sense of the conceptual design driving the tax law requires a full understanding of the forces that create it.  These forces include the extent to which Congress is likely to have deliberately left ambiguity in the statute, the discretion Treasury can exercise as it interprets a statute, and the inevitable choices that the Internal Revenue Service must use in its efforts to curb taxpayers as they pursue questionable positions.

Schler’s essay will bring the reader up to date (or at least up to the late summer of 2025 immediately after the One Big Beautiful Bill passed) on the enormous shifts that have taken place recently in administrative and legislative practice. Key among these developments are the reliance on the reconciliation process (and the reinterpretation of the revenue scoring rules that has accompanied its increased use), the possibility of the increased use of procedures like the Congressional Review Act that would require Congressional ratification of regulations, and the abandonment of the prior law regarding judicial deference toward regulatory actions (of all administrative agencies, not just the IRS and Treasury) in the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

Although his focus is on the processes of legislation and regulation on their own terms, the problems he points out cannot help but affect the texture of the law itself. Once upon a time the income tax could be approached with a presumption of coherence. Marshalled in the service of such coherence in the tax base was corrective legislation, gap-filling regulations, and judicial opinions that engaged in something like common-law reasoning as incomplete statutes were interpreted. With the push after Loper Bright towards strict textualism and limited regulatory authority, this coherence is likely a thing of the past.

As Schler’s discussion reveals, the impact of Loper Bright on the everyday business of enforcing the tax law is far from clear. The first question, of course, is the extent to which all of  the aftermath of Loper Bright will apply to the IRS and Treasury. Even though incremental changes over the last two decades have reduced the extent to which tax administrators have been able to claim exemption from other aspects of federal administrative law, there are ways in which tax administration is, and likely will continue to be, different.  (A quick read of the Supreme Court’s majority opinion in the 2026 tariff case, Learning Resources, Inc v. Trump, No. 24-1287,  will reveal just how much differently the current Supreme Court is willing to treat exercises of taxing power.)  The ways in which tax law was clearly different—especially with respect to pre-enforcement judicial review—reflected an appreciation of what was institutionally possible, on the part of all of the players.  Many of the recent moves toward conformity of tax administrative law with administrative law generally, and recommendations for future such moves, come from those with little concern for the end result.

Regardless of where one comes out in the debate about how different tax administration should be allowed to be, the major shifts in the underlying structure of administrative law analyzed by Schler will undeniably have an effect on the administration of the tax law and thus on the substantive law itself. Thus, no one who seriously hopes to understand the income tax can afford to ignore the current shifts in the background administrative law, and few discussions of these shifts are likely to be more useful than Schler’s to those who seek to understand the federal income tax.

A revised version of this paper was presented before the NYU Tax Policy and Public Finance Colloquium on September 9, 2025, after the enactment of the One Big Beautiful Bill. This version was available as of August 2026 on that Colloquium’s website.

What Is Taxation For? Beyond Taxing Rights and the Challenge of Inequality

Jul 6, 2026 Afton TitusAdd a Comment

Afton Titus

Tax scholarship has long been concerned with poverty, redistribution, and the financing of public goods. That is why debates about wealth taxation and the developments at the UN with its Framework Convention on International Cooperation are so enduring. At the heart of these debates lies a common concern: how should tax systems respond to global inequality? It is against this backdrop that Ingrid Robeyns’ recent article, Why Economic Inequality Should be Central to Strategies for the Future, is particularly timely.

While much international tax scholarship has focused on how taxing rights should be allocated between source and residence countries, Robeyns’ article implicitly asks: what distributional outcomes should tax systems be trying to achieve? In doing so, she persuasively argues that reducing wealth concentration should be a central objective of public policy rather than an incidental consequence of poverty alleviation.

At first glance, the article may appear to sit outside the tax literature. It is written as a broad intervention in debates about inequality, sustainability, and development rather than as a contribution to tax policy specifically. Yet it is precisely for that reason that tax scholars should read it. Robeyns forces tax scholars to reconsider the purpose of taxation. Is taxation merely a revenue-raising mechanism? A tool for poverty alleviation? Or is it also a legitimate mechanism for preventing excessive concentrations of economic power?

Robeyns begins by surveying the scale of contemporary economic inequality. Wealth, she notes, is highly concentrated both within and across societies. The concentration of wealth is increasing, while poverty reduction efforts have stalled in many parts of the world. More importantly, she argues that inequality is not simply another social problem competing for policymakers’ attention. Robeyns expands on arguments presented by scholars including Emmanuel Saez and Gabriel Zucman in arguing that inequality is a structural obstacle that undermines efforts to build a more sustainable and equitable future.

The article identifies several reasons why excessive wealth concentration should concern us. Economic inequality is associated with poorer social outcomes, including lower social trust and worse health outcomes. It undermines democratic institutions by allowing wealth to be translated into political influence. It also threatens environmental sustainability because patterns of excessive consumption are closely linked to extreme concentrations of wealth. Perhaps most provocatively, Robeyns argues that reducing poverty and reducing inequality are not the same project. Poverty can be reduced while wealth becomes increasingly concentrated. Yet such an outcome leaves intact many of the social, political, and environmental harms associated with inequality. This argument matters for tax scholars because taxation remains the principal mechanism through which modern states influence the distribution of economic resources.

For scholars of international taxation, the article is particularly timely. Much contemporary debate focuses on preventing base erosion, combating profit shifting, and implementing the global minimum tax. These are important objectives. Yet Robeyns reminds us that technical reforms are not ends in themselves. They derive their importance from broader concerns about the distribution of resources. A tax system that successfully raises revenue but permits ever-increasing concentrations of economic power may still fail to achieve its underlying normative objectives.

The article also speaks to growing debates about global inequality. International tax scholarship has increasingly recognised that tax systems shape the distribution of resources between developed and developing countries. Discussions surrounding source-based taxation, digital services taxes, and the taxation of multinational enterprises are fundamentally concerned with questions of economic distribution. Amid these debates, Robeyns asks us to take a step back and consider a fundamental issue: what level of economic inequality should a just society tolerate? Once that question is asked, taxation becomes more than a tool for financing government. It becomes one of the primary institutional mechanisms through which societies decide how economic power should be distributed.

Finally, Robeyns’ article deserves the attention of tax scholars because it challenges us to think beyond the technical details of tax design and to engage once again with the larger normative questions that have always animated tax policy. In an era characterised by growing wealth concentration, democratic strain, and mounting environmental pressures, those questions have rarely been more important.

Jury Rights in Civil Tax Cases??

Jun 5, 2026 Susan MorseAdd a Comment

Susan Morse

Does the Seventh Amendment provide a taxpayer with the right to a jury before the government imposes tax penalties? This issue is live at the Tax Court, at Courts of Appeals, and at the Supreme Court. Fortunately, the tax literature includes two entries on this topic, one by Professor Steve Johnson and another by Professor Bryan Camp. Both are somewhat skeptical about a jury trial requirement, thought they emphasize different aspects of the question. Their work should illuminate the conversation, and inform the litigation.

Few thought tax penalties attracted jury rights prior to the 2024 Supreme Court decision in Jarkesy v. Securities and Exchange Commission. But after the Court decided that jury rights attached to securities fraud penalties, an analogous question arose in tax. A cert petition is pending in Hirsch v. U.S. Tax Court, where the Eleventh Circuit refused petitioner’s request for a writ of mandamus on the grounds that the Tax Court had unconstitutionally denied them a jury trial. Tax practitioners are following Hirsch closely.

This Term, the Court will decide another post-Jarkesy case, F.C.C. v. AT&T, which involves penalties for mishandling customer data and which was argued in April 2026. The F.C.C. can only collect penalties under an enforcement order that can be challenged in district court, where a jury is available. In contrast, taxpayers must pay tax penalties before pursuing a district court challenge under the 1958 case Flora v. United States. Thus, the IRS has more potent assessment authority, and the tax fraud penalty jury question will likely remain open after F.C.C. v. AT&T. In the meantime, the Tax Court (an Article I court with no jury capacity) recently has held that jury rights do not attach to tax penalty cases, and appellate courts have begun to consider related cases, including the Eleventh Circuit in Hirsch and the Fifth Circuit in Sagoo, where the government has appealed a district court decision granting jury rights to a taxpayer who faces FBAR penalties.

Johnson and Camp agree that civil tax fraud penalties are the most likely to attract jury rights. Also, they use the same framework to analyze the application of Jarkesy to tax fraud penalties: first, whether a case is an action at common law, and second, whether the public rights exception (discussed below) applies. Camp argues that this inverts the traditional analysis that considered the public rights question first and only got to the Seventh Amendment question if the matter did not involve a public right.

To frame the possible application of Jarkesy in tax, Professor Johnson catalogs the statute, listing a dozen different kinds of penalties. These include timeliness, accuracy-related, information reporting, and tax adviser penalties; civil tax fraud penalties; and criminal fraud penalties. Of these, as Johnson explains, taxpayers generally have the right to a jury only when they face criminal fraud penalties, although jury trials are available in district court in refund suits and in actions brought by the government in district court to enforce collection of an assessment. Professor Camp also canvasses the case law, explaining that there are many cases holding that jury rights do not apply in tax cases and that that long established case law history is the best argument for a tax exception to a jury requirement for tax penalties, even though the precedent generally grapples with jury rights for collection, not jury rights for penalties.

The authors agree on the Jarkesy test. First, is a case an action at common law? Key is the question of whether the penalty is punitive or remedial. The Jarkesy court concluded that the SEC fraud penalties were punitive rather than remedial and that therefore they had to be legal in nature. The Court reasoned that punitive penalties must result from actions at common law because they cannot be equitable, as equity authorizes courts to remediate, for instance via restitution remedies such as unjust enrichment or profit disgorgement, but not to penalize.

The second part of the test is the longstanding public rights exception to the jury requirement.  The Jarkesy Court wrote that public rights are matters that “historically could have been determined exclusively by the executive and legislative branches.” It listed “revenue collection” as a public rights example. The Supreme Court identified a public rights exception for tax in 1856, in Murray’s Lessee v. Hoboken Land & Improvement Co.

Though the authors agree on the Jarkesy test, they diverge somewhat on its application. As to the first part of the test, Camp interprets Jarkesy as establishing a strict and narrow definition of remedial remedies, while Johnson considers the Supreme Court’s statement in Jarkesy that penalties are only remedial if they are “solely” remedial doctrinally precarious, because few if any penalties have no punitive purpose. Johnson calls it merely “plausible, but far from certain, that at least some civil tax penalties are punitive in the sense suggested by Jarkesy.” Johnson also emphasizes the different context of tax penalties as compared to securities penalties, including the fact that tax penalties always go to the government, and never to another private party.

The two Articles also treat a 1938 precedent, Helvering v. Mitchell, somewhat differently. There, the Supreme Court held that a civil fraud tax penalty was remedial, not punitive, for purposes of the double jeopardy clause of the Fifth Amendment. Johnson treats this as strong evidence of the longstanding treatment of tax civil fraud penalties as other than actions at common law. Camp points out that various definitions in tax law, including “tax” and “penalty,” have different meanings in different contexts, and that both Congress and the IRS call the civil fraud liabilities “penalties.”

As to the second step, regarding the public rights exception, both Johnson and Camp acknowledge Murray’s Lessee, which recognized the public rights exception to the jury trial requirement in a case involving the government’s effort to recover remitted taxes from an errant tax collector. Both Johnson and Camp focus on the Jarkesy Court’s language that “[p]ractice may be probative when it reflects the settled institutional understandings of the branches” and consider how to distinguish a civil tax fraud penalty case from Granfinanciera, S.A. v. Nordberg, where the Court held in 1989 that transferees of allegedly fraudulent transfers were entitled to a jury trial when a bankruptcy trustee sued to set the transfers aside. For Johnson, the long history of tax cases consistently refusing jury rights and the embedding of penalties within the tax code demonstrates why the public rights exception should apply. Camp agrees about the importance of tax cases and precedent as a reason to apply the public rights exception, although he also points out that the application of civil fraud penalties is very rare, subject to special process within the government, and arguably not intertwined with the rest of tax law.

Camp’s article, published soon after the Jarkesy case, focuses on a close analysis of the opinion itself, while Johnson offers a more comprehensive analysis. For instance, Johnson offers an argument that uses the 1938 Mitchell precedent (which held that civil tax fraud penalties were remedial and not criminal for purposes of the Double Jeopardy Clause) to explain why the Court should the respect the intent of Congress to impose tax penalties. Johnson argues that Mitchell stands for the proposition that it is “within the constitutional authority of Congress to assign determination of this penalty to an administrative agency [that] may make its determination without employing the procedures of the Article III courts.”

Tax penalties can avoid a jury trial requirement if a court decides they are remedial, or if a court decides that the public rights exception applies, or if a court decides that the availability of a jury trial in a district court refund suit is sufficient to satisfy the Seventh Amendment. Regardless of how courts decide cases about the jury right in civil tax fraud, the courts, the litigants, and the academy should read both articles. This is impact scholarship, beautifully timed and indisputably useful.

Showdown or Balancing Act: Reconciling Our Commitments to the Tax System and the Legal System

Apr 14, 2026 Diane RingAdd a Comment

Diane Ring

In Client-Attorney Privilege: The Last Barrier to Tax Transparency, Siddesh Rao explores the tension between ongoing global efforts at tax transparency and disclosure and legal systems’ commitment to client-attorney privilege. In a world in which information vital to effective tax enforcement is frequently hidden from view, who should be compelled to provide that information and on what terms? The answers to these questions have large stakes. On the tax revenue side, the failure to enforce the tax laws meaningfully, especially against large and sophisticated taxpayers, may diminish both the fisc and public confidence in the tax system. Conversely, making information and transparency demands on legal advisors puts at risk fundamental principles in legal systems premised on a special relationship between attorneys and their clients. The balance between these two priorities faces increasing pressure as states have devoted more attention to transparency and disclosure while at the same time taxpayers have, according to various observers, strategically misused claims of privilege to shield their transactions, structures and assets from tax authorities.

To evaluate this tension and offer recommendations, Rao adopts a comparative perspective, considering applications across common law and civil law jurisdictions, exploring common contexts for privilege “abuse,” and detailing the effects of transparency-forcing regimes such as mandatory disclosure and anti-money laundering rules. Although we may often think about client-attorney privilege as an internal, domestic legal issue, the rise of this tension is indeed global, as Rao documents. It is a culmination of both individual state responses to tax enforcement challenges, and a globally expressed commitment to tax transparency and disclosure in a world in which much sophisticated tax planning is cross border.

Rao sets the stage with a quick review of the global rise over the past 25 years of transparency and disclosure as critical tools in tax enforcement. Post the 1998 OECD Harmful Tax Competition Report, attention shifted increasingly to transparency-based tools. Part of this drive in recent decades comes from greater public awareness of tax evasion, tax avoidance, and corporate tax practices triggered by a series of high profile leaks. Claims grounded in client-attorney privilege have begun to bump up against demands for transparency and disclosure. (As an aside, I could not resist thinking that unilateral substantive rule changes also could help larger and wealthier jurisdictions address tax avoidance and evasion, especially given substantive rules such as the U.S. check-the-box rules have been widely identified as contributing substantially to the capacity of global taxpayers to engage in tax avoidance.)

The tension that Rao investigates is ultimately more than a simple two-sided debate about tax enforcement v. client-attorney privilege. It is complicated by nuances across states, by the interplay of international agreements (tax and nontax), and by the complexity of the privilege itself. The paper tackles each of these in turn, drawing upon examples, cases, and regimes from countries across the globe. Although there is sufficient commonality in the understanding of the privilege across borders to warrant and benefit from a shared conversation, the differences do present both theoretical questions about what might be shared goals, and practical questions about possible responses to cross-border requests for information. The analysis displays an appreciation of the granular ways in which privilege can be misused (including claims of privilege for nonlegal documents and mixing transactional documents with legal ones in an effort to secure a blanket privilege for all). Rao’s analysis further benefits from insights and observations gleaned from a series of focus group meetings conducted under university sponsorship in which senior officials from governments (tax and financial intelligence units), bar associations, Big Four tax practices, and MNE compliance units discussed privilege’s scope and misuse patterns, along with barriers to investigation and remedial options. These observations and insights were further vetted in three broader international conferences. Brief summaries of the focus group meetings (conducted under Chatham House Rules) are included as an annex.

So what recommendations does Rao make for managing our competing goals of tax enforcement and privilege? I will save the details for your deeper read of this paper, but the key directions include efforts to counterbalance the asymmetry of information and resources between tax authorities and tax advisors (including more training, access to privilege law expertise, and technical capacity); more explicit balancing mechanisms within legal regimes (such as structured proportional analysis, independent review, and alternative compliance options); specific cross-border regimes (for example standardized procedures for privilege claims, mutual recognition arrangements, and joint investigations); adoption of technology-based solutions (introduction of automated privilege log systems and secure document review platforms); and engagement with the legal profession.

The last one struck me because it engages with a core tension I have been trying to resolve: the tension between the role of tax professionals in tax planning and but also in tax compliance. Long before tax professionals face any requests for information that place privilege in the cross-hairs, those very tax professionals often have been playing an active role in designing their taxpayer clients’ transactions, strategies and reporting positions—conduct that creates its own tensions between taxpayer’s rights to pay as little tax as possible and a tax advisor’s duty to the legal system and society. Clearly engagement with the profession will be important, but what are its limits?

I look forward to future work on the paper’s recommendations, perhaps with expanded use of focus groups and case studies to test options. As legal systems continue to craft a balance between protecting the tax system and protecting client-attorney privilege, how may changing state priorities shift the outcome? States previously motivated by whistleblowing and leaks to embrace transparency and disclosure may find themselves less committed as they identify new and more urgent priorities. For example, the European Union, which over recent years had pursued various tax transparency and disclosure regimes, has tempered some efforts and simultaneously announced a commitment to tax competitiveness and simplification. Ultimately, the balance we strike will reflect not just our problem-solving skills but our deeper values.

The Asymmetric State: The Urban-Rural Divide as Architect of U.S. Tax Policy

Mar 11, 2026 Adam ThimmeschAdd a Comment

Adam Thimmesch

Since 2020, many states have been cutting their income tax rates and narrowing their bases, while others have been considering wealth tax proposals and other progressive revenue tools. These divergent actions raise critical questions about modern fiscal federalism. When is subnational redistribution feasible? When does tax competition instead lock states into a uniform tax-cut script? And how does federal tax policy impact states’ choices?

Kirk Stark’s article, Taxation, Redistribution, and the Urban-Rural Divide, offers an interesting and useful evaluation of these questions by assessing modern fiscal federalism through a spatial lens built on insights from a variety of fields, including economic geography, U.S. history, and political science. His article recognizes that the traditional “textbook” model of fiscal federalism often dismisses subnational progressive taxation as implausible. The logic, rooted in the Tiebout model, is simple: if a state tries to “tax the rich,” the rich—or their mobile capital—will simply move. This understanding conventionally leaves the federal government to address equity and progressivity while states instead compete on service quality.

This story is, of course, incomplete in practice. Mobility is far from homogeneous, either interpersonally or interregionally. In addition, the ‘stickiness’ of urban markets is a known phenomenon in economic geography, which means that urban locations have greater power to impose taxes than the traditional account permits. Stark uses these insights to evaluate the reality of “asymmetric tax competition” between urban and rural states.

Of course, the story of urbanism is largely one about localities, and other scholars have rightfully identified that cities, rather than states, are often the proper subunit for analysis. On this point, Stark’s article implicitly recognizes that states still call the shots in many ways, especially as we see greater levels of preemption of local law by states across areas of law, including tax.

Stark also recognizes that classifying states as urban or rural is not an obvious endeavor, and he starts the article by confronting this challenge. This was a particularly interesting part of the article to me, because it required me to think more deeply about how urbanism and rurality look different under different lenses. Specifically, Stark offered and assessed three different metrics for measuring urbanism or rurality—census urban population shares, USDA rural-urban continuum codes, and census-tract level density indices. States fare differently under different metrics, and some states—like my own state of Nebraska—fall on different sides of the urban-rural divide depending on the metric used.

On its own, this introduction of different methodologies for discussing the urban-rural divide is useful for those who think about the effect of place on tax policy and the effect of tax policy on place. The law and rurality literature, in particular, invites more meaningful and granular discussions of rural America, and Stark’s incorporation of this element of analysis into tax policy is welcome and important.

Stark adds greater nuance to his article by then categorizing state tax structures into four quadrants based on their overall tax burdens (high or low) and their relative tax progressivities (high or low). That exercise facilitates an interesting geographic and historic assessment of state-tax policies across the country. As he shows, major urban agglomerations appear in all four quadrants, suggesting that density is not determinative. Nevertheless, urban states along the coasts disproportionately occupy the high-tax/high-progressivity quadrant, and rural states cluster instead toward the low-tax/regressive quadrant. These results might seem intuitive, but Stark provides an analytic, data-oriented framework for these categorizations.

I also particularly liked that the article then explores how this “sorting” results from historic and geographic factors that supplement a purely political account. In particular, Stark carefully evaluates the tax policies of the American South, and he explains how the history of slavery and Reconstruction Era policies shape state tax policy to this day. He also looks at “outlier” rural and urban states—Maine and Vermont (rural/progressive states) and Texas and Florida (urban/regressive states)—and investigates the histories that explain their tax structures. These explorations demonstrate the importance of looking at the factors that contribute to state fiscal policy—and to state fiscal health more broadly.

The article then flips the lens upward and shows how rural-urban dynamics shape federal tax policy as well. Stark explains how the same urban concentrations that allow for subnational redistribution also skew tax politics against redistribution at the federal level. Principally, because progressive voters are geographically clustered, they have difficulty translating their preferences into progressive federal tax legislation given equal state representation in the Senate. The countermajoritarian nature of House districting and the Electoral college have similar effects. Stark links these anti-urban structural biases to the regressive direction of major federal tax reforms over the last quarter-century.

This discussion of how the urban-rural divide impacts federal tax policy is both interesting on its own and particularly important for understanding the efforts by some states to impose progressive income taxes or taxes on wealth. The classic account of American fiscal federalism assigns to the federal government the role of redistribution, providing a progressive backstop to state-level regressivity. But if our constitutional anti-urban bias makes that backstop unreliable, then progressivity cannot be treated as primarily a federal responsibility. Stark’s article therefore explains both why states can impose taxes that once seemed unwise and why those taxes may be desirable.

Overall, the article explains why subnational redistribution can succeed where the textbook model predicts futility, why federal redistribution underperforms even when national majorities favor it, and why the United States may be headed toward an increasingly asymmetric fiscal union. Stark’s article thus provides readers with a deeper understanding of American fiscal federalism and a stronger foundation for confronting modern day tax-reform politics.

Anatomy of a Shakedown: The Carried Interest Case

Feb 12, 2026 Charlene D. LukeAdd a Comment

Charlene D. Luke

Edward J. McCaffery and Darryll K. Jones offer an engaging explanation for the lack of progress in closing the carried interest loophole in The Curiouser and Curiouser Case of Carried Interests. This well-known loophole—which has been analyzed extensively in the literature—allows top hedge fund and private equity managers to pay tax on service income at the lower rate afforded long-term capital gains. The article draws on earlier scholarship by each of the co-authors and provides an updated account of the decades-long lack of progress in closing the loophole.

In 2006, McCaffery and Linda Cohen published Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. Rev. 1159 (2006). That 2006 article drew on Mancur Olson’s 1965 book, The Logic of Collective Action, which theorized the conditions required for special interest lobbyists to overcome collective action problems and wield outsized legislative influence. McCaffery and Cohen posited that Olson’s framework did not adequately explain the shenanigans surrounding estate tax repeal. Instead of legislators being the dupes of special interest groups, legislators were engaging in extortionate brinkmanship to increase campaign contributions from the special interests with the most to gain (or to lose) from estate tax legislation. As McCaffery and Jones summarize in their article, the game is “reverse” Mancur Olson because “legislators come first, special interests second.”

In 2008, Jones published The Taxation of Profit Interests and Reverse Mancur Olson Phenomenon, 36 Cap. U.L. Rev. 853 (2008), and applied the McCaffery and Cohen’s reverse Mancur Olson framing to the carried interest loophole. McCaffery and Jones explain that Jones’s 2008 article “was rather more sanguine” about the likelihood that the carried interest loophole would be closed soon than McCaffery and Cohen had been about estate tax reform.

But, as McCaffery and Jones observe, “Flash forward 15 years, and here we all are: still talking, and still not doing much, about carried interest.” The co-authors use the details of those subsequent years of “carried interest capers” to make a compelling case that congressional failure to close the carried interest loophole flows from legislators’ desire to reap campaign contributions.

The article deliberately refrains from making the normative case for removing the loophole. It suggests, however, that such efforts by others (noting in particular the influential work of Victor Fleischer and his key article, Two and Twenty: Taxing Partnership Profits in Private Equity Funds, 83 N.Y.U. L. Rev 1 (2008)) helped set the stage for legislators, at times aided and abetted by the executive branch, to be able to use plausible threats of closing the loophole as a tool for fundraising.

Internal Revenue Code § 1061 provides one curious example in the history of carried interest (in)action. This Code provision was enacted in 2017’s Tax Cuts and Jobs Act under the first Trump administration. Section 1061 applies only to private equity and hedge fund managers. It does not, however, get into the “maze of subchapter K” partnership tax rules to prevent managers from using longstanding IRS guidance to convert service income into preferential capital gains. Instead, § 1061 operates, in essence, to increase the holding period required for the preferential tax rate from more than one year to more than three years. As McCaffery and Jones explain, however, by 2010—seven years before § 1061 was enacted—the average holding period of such interests was 3.8 years and rose to 5.4 years by 2020.

In presenting the history of § 1061 as a case study of the reverse-Mancur Olson phenomenon, the article highlights three essential ingredients. First, there must “be one or more small groups with high stakes” and money to spend. Private equity and hedge fund managers clearly fit this bill. As the authors notes, the top 25 fund managers in 2022 together raked in $21.5 billion, and a “13.2% tax break (from 37% to 23.8%) is worth $132 million annually” per $1 billion dollars.

Second, “there must be plausible legislative action, for who would pay without threat of pain or promise of benefit?” And third, the issue must have “‘two or more sides’ to prevent all lawmakers from gathering on the one side where the money is and—heaven forbid—actually doing something.” The second and third conditions operate hand-in-glove in the carried interest situation because the two sides needed to string things along come not from distinct special interest groups (as occurred in the estate tax case) but rather from “closely divided government.”

As McCaffery and Jones highlight, “[h]istorically, private equity has supported Democrats.” And, because of their overall approach on taxes, Democrats have been able to mount the more credible opposition to the loophole. Presidential candidate Hillary Clinton campaigned on the issue, even vowing “to use her regulatory authority” to do something. This prompted “an opportunity to Trump to play the principled hero” on the issue, “tweaking Clinton.” McCaffery and Jones document how then-candidate Trump campaigned on the issue but, once in office, left the negotiations with “Wall Street players who would be predictably sympathetic to the break.”

President Trump was, however, able to create a plausible threat of action by Republican legislators, leading to a large, new infusion of private equity contributions for Republicans, most notably for Senator Collins. The authors recount how Senator Collins made a day-long threat to increase the holding period to more than 8-years as part of the 2017 legislative process, which because it might have done something, “set off a flurry of concerned communications.” She backed off, and ProPublica reporters later uncovered that she received more campaign contributions from private equity than any other senator.

Enactment of § 1061 in turn allowed Democratic legislators in 2022 to plausibly propose increasing the holding period to more than five years, with Senators Manchin and Sinema (with an assist from Senator Schumer) reaping the most in contributions from private equity in the lead up to not actually changing § 1061.

The article concludes that in recent years, these legislative shakedowns “play[] out from simple assumptions about rational behavior”: legislators “need money”; “Congress has monopolistic control over the power to tax”; and at times a particular “politician (Collins, Manchin, Sinema) may have monopolistic power over Congress’s monopolistic power to tax.” Each party has been able to use the carried interest issue to take a turn at shaking down private equity.

The public is, for all practical purposes, not a party to the game because it is “a very long longshot indeed” that a citizen’s vote would turn on the carried interest issue. As a result, reverse-Mancur Olson gamesmanship plays out “in plain sight.” Because it is a manifestation of rational behavior by all the players, McCaffery and Jones conclude that there are not “magic answers” to the carried interest problem (or to other manifestations of the phenomenon for that matter).

The article notes, “If we are going to get money out of our politics, we must get the reasons that money is in politics out of our politics. As long as a complex set of tax laws allows opportunities for lawmakers to use their taxing power to fundraise, the games will go on…” While the overall arc and tone of the article is fairly bleak—albeit in a witty and entertaining way—the authors’ case study persuasively emphasizes the necessity of “better watch[ing] the watch dogs” through calling out the process by which lawmakers are leveraging the tax system to fundraise.

Putting the Original Back into Tax Originalism

Jan 22, 2026 Adam RosenzweigAdd a Comment

Adam Rosenzweig

In June 2024 the Supreme Court issued its decision in Moore v. United States, a case many had predicted would be one of the most consequential tax cases of the past century. Instead, however, the Court managed to avoid deciding the most difficult and consequential issues by reframing the case and ruling on narrower, more technical grounds. Yet Moore may well still prove as consequential as expected, but for a different reason– that, for the first time, the Court explicitly utilized the “history and tradition” to interpret the taxing power, stating that “the Sixteenth Amendment expressly confirmed what had been the understanding of the Constitution before Pollock …” In doing so, Moore also serves as an invitation to to reconsider the historical record and understanding of the taxing power specifically with an eye towards shaping the Court’s modern interpretation of the Constitution.

Conor Clarke and Ari Glogower take up this cause in their new article, Apportioned Direct Taxes (ADT). The authors have two primary goals in ADT: (1) to provide a comprehensive survey of all “direct tax” legislation adopted by Congress prior to the Sixteenth Amendment including not only legislative history but administration and enforcement considerations as well, and (2) to identify what if any lessons emerge from that survey to help the courts to interpret the breadth and scope of the term “direct taxes” as used in the Constitution.

With respect to (1), by considering every direct tax adopted by Congress holistically, ADT identifies big picture themes which might not have necessarily emerged looking at each tax in isolation. Among these include: the willingness of Congress to experiment with various forms of direct taxes, the role of flexibility and responsiveness in the administration of direct taxes, and the trend over time away from direct taxes towards income taxes. These findings often complement much of the conventional wisdom regarding direct taxes but at times even contradict, or at least seriously call into question, many current assumptions regarding the scope of nature of actual direct taxes. For example, a commonly repeated adage in the tax literature provides that apportionment is unfeasible in the real world, which in turn suggests that any direct tax would be effectively unconstitutional per se. ADT challenges this assumption by describing real-world examples of Congress in fact adopting direct taxes that were actually apportioned; thus, while it may remain true that apportionment may not be practicable for Congress to adopt in today’s world, that is different than saying the historical record does not support any claim that apportioned direct taxes necessarily fall outside the scope of the taxing power itself.

Most importantly, however, ADT does not claim to be legal history qua history, nor does it claim to make the same contribution to the tax literature as an archival historian might.¹ Rather, ADT utilizes history to take the “history and tradition” standard seriously as a means of guiding the scope and breadth of the modern interpretation of the Constitutional taxing power. To this end, ADT does not try to use the history to justify a particular interpretation but rather allows the descriptive history section to speak for itself and allow themes to emerge naturally from the historical narrative. In this manner, ADT could also be implicitly asking the reader to confront their own potential assumptions and/or normative priors and try, if possible, to reconsider the question from a blank slate (so to speak).

One of the most intriguing examples involves the timing of apportioning a real world tax to comply with the Constitutional apportionment requirement: at the time the tax is enacted, the time it is collected, both, or other? Perhaps surprising to some, ADT concludes that direct taxes in the past were apportioned at the time of enactment and not the time of enforcement or collection to allow the flexibility necessary to administer a real tax in the real world. The implication is that a direct tax enacted by Congress could be apportioned among the States based on population on its face and then it should be considered to satisfy the Constitutional apportionment requirement regardless how it actually ends up being collected and/or implemented In turn, ADT reaches what is perhaps a surprising conclusion to some–that under the Court’s own “history and tradition” standard the “direct tax” power may actually be broad, flexible, and pragmatic rather than impracticable and constraining as is often argued in the modern tax literature.

In this respect, ADT highlights a subtle but real internal tension within the “history and tradition” standard itself–that the more complexity and nuance is added to the historical narrative, the harder it becomes to identify any one clear lesson (or doctrinal standard) from that narrative. If true, could the inevitable conclusion of the “history and tradition” standard ultimately be doctrinal ambivalence in much the same manner as Llewellyn famously demonstrated for canons of construction?² Further, at what point should the Court consider the historical record “closed” for purposes of interpreting the taxing power and what if new evidence is discovered after that point that would fundamentally change the historical understanding of the taxing power? Which should control–old precedent or new history? Taken to its logical extreme, rather than serve its intended purpose of anchoring or constraining judicial interpretation of the Constitutional taxing power could the “history and tradition” standard actually prove to do the exact opposite?

Of course no single article can address, let alone answer, all of these questions, and there is no way to know if the conclusion reached in ADT will ultimately win the day, but the mere fact that ADT forces the reader to confront such questions by addressing them with sincere academic rigor represents an important and valuable step in the right direction.

1. There is also an excellent and rich legal history of taxation literature, for example see Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929, (2013).
2. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401–06 (1950).

Do Rich or Poor Prefer International Redistribution More?

Dec 18, 2025 Emily SatterthwaiteAdd a Comment

Emily Satterthwaite

Direct international aid flows directly to individuals and communities in the form of such essentials as food, water, medicine, and cash. As humanitarian crises erupt around the world, this form of assistance has become both politically contentious and more necessary than ever. Yehonatan Givati’s timely new paper, Income and Preferences for International Redistribution: Theory and Evidence, offers an enlightening framework to think about patterns of support for such aid programs. It builds on theoretical and empirical research that has established a relationship between preferences for domestic redistribution and income: poor citizens will likely support rich-to-poor redistributive policies within their own countries more than rich citizens. But what about international redistribution? How might an individual’s relative income level influence her support for internationally redistributive policies?

Givati begins by observing that the relationship between income and preferences for international redistribution is much less obvious than in the domestic context. Because lump-sum international redistribution must be financed through higher taxes, higher-income individuals have more to lose from international redistribution. This implies a negative relationship between income and support for international redistribution. At the same time, lower-income individuals may perceive that, given fixed funding levels, international redistribution will come at the expense of domestic redistribution. This implies a positive relationship between income and support for international redistribution.

To untangle these intuitions, Givati proposes a model in which a rational, utility-maximizing representative individual works and consumes. The individual chooses amounts of labor and leisure to maximize her utility, which is derived from consumption and leisure, plus two further elements: (1) she has altruistic preferences for a lump-sum “domestic grant” (like a universal basic income) that is paid to each individual within her country and (2) she also has altruistic preferences for a lump-sum “international grant” that is paid to each individual within a group of foreign countries. (P. 7.) In the model, the lump-sum domestic and international grants are financed by proportional (flat) income tax rates, so each of the taxes, by definition, is redistributive. (P. 6.)

The model allows Givati to assess the effect on an individual’s utility of an increase in the tax that finances international redistribution. Again, there are arrows pointing in opposite directions. On one hand, a tax increase (weakly) increases her utility because it provides more international redistribution and the individual has altruistic preferences. On the other hand, a tax increase distorts her labor-leisure choice. The increased tax causes her to work less even if the domestic grant tax rate does not change. This increases her leisure but decreases her income and leaves less income to be taxed to fund domestic redistribution. (P. 10.) This implies that an increase in taxes for international redistribution decreases utility. Balancing these effects on utility, the model gives us an expression for the optimal, utility-maximizing level of the tax that finances international redistribution.

From this expression, the paper can answer its central question of how the optimal level of tax that finances international redistribution varies with an individual’s income. Givati finds that an increase in income reduces the optimal level of the tax for international redistribution (P. 10): the cost of the program increases with income, but the benefit, including the indirect utility from the program, is fixed. This implies that there should be an overall negative effect on utility of an increase in taxes for international redistribution.

All of this makes theoretical sense. But is it true, in the real world? Does support for international redistribution really decrease as income rises? Or, as columnist Nicholas Kristof has put it, is it simply that “Americans are weary of international burdens and don’t feel it is their job to save every impoverished person?”

Somewhat amazingly (and Givati believes he is the first to use this data), four existing surveys share a question that asks about support, through taxes, for international redistribution. The 2000 and 2021 General Social Surveys (GSS), which are U.S.-focused, and the 1999 and 2019 International Social Survey Programs (ISSP), which are focused on other countries, include identical prompts, with which participants indicate their agreement on a 5-point scale: “People in wealthy countries should make an additional tax contribution to help people in poor countries” (emphasis mine). The prompts work well with Givati’s model because they contemplate direct aid to individuals and suggest the existence of two separate taxes, one for international redistribution and one for domestic redistribution.

These highly-relevant surveys allow Givati to assess whether poor people are more or less likely than rich people to support international redistribution within a given country. He first looks at the U.S. using the 2021 GSS data and, using both graphical evidence and ordinary least squares regression analysis with a range of controls, shows that there is a negative correlation between respondents’ support for international redistribution and their income. (P. 21.) Next, he investigates whether the correlation holds in other countries using the 2019 ISSP data, and finds that it does. (P. 23, Table 4.) He notes the possibility that a country’s status as rich or poor may affect whether the rich in that country support international redistribution more than the poor. He seeks to rule this out in two ways: first, by interacting the coefficient for the measure of respondents’ income with that for country-level GDP per capita (no effect found!) and, second, by breaking up the countries in the ISSP data into deciles by GDP per capita, and running regressions within each decile. On this latter test, for every one of the deciles, the coefficient on support for international redistribution is negative and statistically significant (P. 25, Table 5), meaning that no matter how rich or poor a country is, the negative relationship between income and support for international redistribution holds.

One might wonder: are the 2019 and 2021 data that Givati uses simply creatures of their times? Might preferences surrounding international redistribution have changed rapidly with the recent rise of populist politics and isolationist foreign policies? Only future surveys can tell. However, Givati shows that the correlation has historical stability: using the earlier datasets (GSS from 2000 and ISSP from 1999), he confirms a negative relationship between taxpayers’ income and their support for international redistribution. (P. 31-33, Table 8.)

Or, alternatively, maybe the poor are simply more generous than the rich? And the rich should aspire to be like the poor in this regard? These questions are beyond Givati’s scope. That said, I came away from the paper with a fervent-if-small-and-research-oriented hope: that the GSS and ISSP surveys will start asking, on an annual basis, about support for international redistribution. Regardless, Givati’s contribution offers needed insight into how support for international redistribution is itself distributed across societies.

Relics Reevaluated: How to think about Tariffs in a World Dominated by the Income Tax

Oct 30, 2025 Charlotte CraneAdd a Comment

Charlotte Crane

There’s a lot of confusion about the justifications for and the consequences of tariffs in the news these days. The essay by Reuven Avi-Yonah, Doron Norotzki, and Tamir Shana entitled From Relic to Relevance, The Resurgence of Tariffs, attempts to remedy the situation. Its bottom-line conclusion is that it is extremely difficult to imagine a tariff system sufficiently robust to raise revenue adequate to replace the income tax even if revenue were the only concern. Moreover, it is virtually impossible to implement such a tariff without the real possibility of wreaking havoc on both domestic and international economies. The authors of Relic to Relevance (hereinafter “Relic authors”) want us all to understand why reliance on tariffs, especially as a replacement for the income tax, could be so dangerous.

As the Relic authors outline, introducing major changes in tax instruments is tricky business. In peace time, the United States Congress has rarely made such moves. The first time was the expected result of the adoption of the Constitution; expected because the need for a revenue source controlled by Congress and for uniform trade policy had been primary motivations for adopting a constitution to replace the Articles of Confederation. In its first substantive piece of legislation, Congress enacted the Act for Laying a Duty on Goods. This Act became law on the first Fourth of July celebrated under the new Constitution in 1789 (1 Stat. 24).

Even in those early days, the tensions outlined by the Relic authors between tariffs for protection and tariffs for revenue were present. James Madison had hoped to avoid the distortion of foreign relations that might occur as a result of ill-considered tariffs and tonnage duties. He further was aware of the domestic strife that could result from duties aimed at protecting domestic manufactures, especially when the cries for protection were regionally based. (These statements are contained, among other places, in Madison’s address to the House on Tonnage Duties). Congress nevertheless caved into the pressure to use its revenue-raising powers to provide an advantage to American shipping and to protect to nascent domestic industries.

But in 1789 the only realistic choices available to Congress for raising substantial amounts of revenue were either (1) a tariff imposed at a single rate on the value of all goods imported (generally referred to as an impost) or (2) a tariff that distinguished among types and sources of goods. (Tonnage duties on the ships used in trade, rather than on the goods being traded, might effectuate mercantilist trade policy but were never likely to raise much revenue. Property taxes, along with tariffs, had newly been permitted to Congress, but they require far more administrative capacity than the new Congress could muster, and they represented a far greater political risk.) The single-rate approach to taxing imports would clearly be the politically cleanest revenue-raising device. The latter—a tariff on specific goods—would, then as now, involve more political tension. As the Relic authors outline throughout the essay, the latter also involves a greater need for sophisticated calibration to avoid disastrously adverse economic consequences.

As is clear from the history recounted in Relic to Relevance, the use of the tariff for both protection and revenue has historically presented enormous challenges to the political institutions in the United States. Only after the income tax was introduced and later expanded during the First World War could Congress leave behind the friction and controversy associated with tariffs. In outlining this history, the Relic authors provide a valuable survey of the historical and economic literature on the subject of tariffs, and on the tax instruments most often thought to resemble tariffs.

Relic usefully provides a comparison of the political and economic ramifications of various revenue instruments available to the modern Congress. Relic also offers the reader several starting points for assessing whether a well-calibrated tariff system could possibly generate as much revenue as the federal government requires. Although the essay is written as if to outline the conditions that must be met in order to make such a tariff acceptable, it seems clear the authors ultimately are skeptical that these conditions can be met.

Taxing Tips Is Not Just About Tax Law

Sep 30, 2025 Susan MorseAdd a Comment

Susan Morse

In Waiter, Extra Tip, No Tax: A Distributional Analysis, Marilyn Hajj offers a poverty law take on a classic and timely tax question: the taxation of tips. Her refreshing article avoids tax law’s knee-jerk opposition to a tax break for tips by offering an analysis that advocates for redistribution to low-income tipped workers. Although she does not give the tip tax breaks in the recently enacted One Big Beautiful Bill Act glowing marks, she explains that the new law would be preferable to the earlier status quo if it were better targeted and more accessible to low-income workers.

Hajj begins with the story of tipping, which traces to the “vails” expected by household staff at English homes in the 1700s. American tipping “seems to have originated in the traveling aristocracy.” After the Civil War, it developed into a custom of class and race bias. Hajj writes that Black workers in service jobs, for instance at restaurants or as railroad porters, received lower wages, and that employers used tips to justify this. The hospitality industry successfully defeated anti-tipping statute statutes; initially obtained an exemption from the federal minimum wage; and continues to take advantage of a “tip credit” rule that results, in some states, in an hourly minimum wage of $2.13 for tipped workers. Of tipped workers, 37% do not make enough to owe any income tax and 11.3% experience poverty, which is more than double the rate for non-tipped workers.

Hajj writes with the voice of a scholar immersed in both poverty law and tax law. Tax law professors like to teach Commissioner v. Duberstein, a 1960 Supreme Court case that categorized tips as taxable income due to the absence of “detached and disinterested generosity.” But Hajj is not interested in the usual tax law question of compliance for taxes on tips. She argues that whatever the merits of a broad income tax base, that base should not be broadened on the backs of the poor, especially when the rich enjoy tax breaks galore. According to Hajj, tax relief for tips should be an anti-poverty policy, tailored to maximize the benefits for tipped workers.

Hajj argues that an ideal tax break for tips would be structured as a deduction, not an exclusion, from income. This would enable tipped workers to continue to increase tax benefits that increase with income, such as the child tax credit and the earned income tax credit, even though they might lose some such benefits, particularly the EITC, based on tip income in higher-income phase-out ranges. The tip provision in the One Big Beautiful Bill Act enacted in 2025 does this, through a “between-the-lines” deduction available to both itemizers and nonitemizers and capped at $25,000.

Hajj’s ideal tax break for tips also would phase out, as the OBBBA tip provision does. It features a graduated phase out beginning at $150,000 and ending at $400,000 for single filers. But as Hajj argues, this means that the OBBBA’s tip tax break benefits many workers who earn far more than the average of about $32,000 earned by a restaurant server. Here, she writes, the tip deduction is poorly targeted and does not match anti-poverty policy. She prefers a “cutoff” at $75,000, which is closer to median family income. She also objects to the requirement that workers provide social security numbers and file jointly, since this disadvantages immigrant families. And she argues that the law should also find a way to require service establishments to pay the full minimum wage to tipped workers.

Another issue is which workers will be eligible for the tip deduction. The OBBBA limits eligibility to occupations that “traditionally and customarily” receive tips, an approach that Hajj endorses. She worries that otherwise new professions may game the system by structuring compensation to include tips. She seems persuaded instead by the historic story of tipping and by the logic that the tip deduction is, although inadequate, an appropriate way to address existing wage suppression.

As Hajj explains, the tip tax provisions also include relief for employers, who are incentivized to report tips by the Section 45B tax credit. This credit equals the payroll tax on reported tips that exceed the amount needed to bring wages up to a minimum wage threshold. The OBBBA expands this credit to include beauty service establishments. Also, employers get a larger credit if the minimum wage threshold is lower, and the OBBBA allows food and beverage establishments to continue using the 2007 hourly rate of $5.15 rather than the current hourly rate of $7.25.

The full picture of poverty law also involves non-tax benefits such as Section 8 housing vouchers, SNAP food assistance, and Medicaid. Here there is an interesting interaction that Hajj might explore more. The expanded Section 45B employer tax credit and the reduced incentive, because of the OBBBA deduction, for employees to prefer unreported tips might mean employers will report more tips than they used to. If they do, is it possible that the reported income of tipped workers will increase even if their actual income remains the same? That could decrease the availability of non-tax benefits under other programs.

Sometimes perhaps we get too attached to the tenets of tax law. It’s true that a deduction for tips disturbs our collective commitment to the calculation of taxable income as a broad and inclusive concept. But it’s a small ripple compared to the ability to delay tax on wealth appreciation until sale or other realization. Hajj’s perspective shows us another important side of the tip tax break issue.