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Change in International Tax

Oct 22, 2021 Charlotte CraneAdd a Comment

Only a fraction of tax law professors teach the course usually called “international tax.” For the rest of us teaching tax at a law school, the effort that technical competency in international tax requires is unsustainable, especially given the instability of that part of the law that most affects US multinational business. But every tax professor should understand at least a little bit about the ways that international tax law is changing. I recommend reading Ruth Mason’s work, most recently The 2021 Compromise, as a great way to gain competency regarding this evolution.

Mason’s goal in this piece is to contextualize recent developments in the OECD/G20’s BEPS project against the backdrop of her extensive prior work on the subject (see especially The Transformation of International Tax), and to put into perspective the changes currently underway in the international tax space. On July 1, 2021, 130 countries reached agreement in principle to Pillars 1 and 2 of the G20/OECD Base Erosion and Profits Shifting (BEPS) project. Pillar 1 concerns the allocation of taxing authority after the emergence of the digital economy and Pillar 2 is a proposal for a global minimum tax. This two-Pillar OECD project represents a second phase of the G20/OECD work on BEPS.

Mason is particularly anxious to point out that the ultimate impact of the developments under the first phase of the BEPS project should not be underestimated. Other scholars have complained that this first phase of negotiations fell far short of the policy changes that must be embraced to achieve anything like a fair and sensible system for the taxation of multinational enterprise, but Mason’s view is that, however short the project’s pre-2020 stages may have fallen, that activity has set the stage for Pillars 1 and 2, and it is unlikely that international tax will ever be the same. Everything is now open to change — from the processes and participants in the making of international tax policy, to the content of the consensus that will emerge for the allocation of tax shares, to the multilateral tools that are likely to become available to implement that allocation.

Mason’s article provides a high-level summary of the technicalities of the Pillar 1 and Pillar 2 proposals in second phase of BEPS project. Pillar One of that project aims at reallocating taxing rights to source or market countries; and Pillar Two aims at establishing a minimum tax that would provide some self-regulation of tax competition. The fact that the outline of this second phase has been revealed (and appears to have been taken seriously enough that implementing steps may take place as early as the first quarter of 2022) makes Mason’s analysis in prior work of the forces that led to the first phase, and the significance of that phase, all the more important.

Mason’s article starts with the relatively familiar institutional development of the international tax regime that dominated in the twentieth century. The “1920s compromise” reflected the role of the US as an exporter of capital with the dominant goal of avoiding double taxation of its enterprises and with the arm’s length standard as the primary weapon against tax avoidance. Then, this old regime became destabilized. As Mason’s prior work explains, this destabilization was in part the result of the changing nature of economic global enterprise (especially the changes in the nature of cross-border economic activity that rendered useless the concept of permanent establishment). But it was also the result of other smaller fissures in the traditional system (especially the tax arbitrage made possible by the US check-the-box rules and other innovations that we non-international specialists may too often look at only from the domestic point of view). These fissures were exploited in ways that no one institution had the power or even the incentive to block.

In Mason’s account, the situation changed with the 2008 financial crisis and increased publicity surrounding the failures of the old regime. Politicians around the world felt increased pressure to look harder at the problems of international tax. The result was a shift in the identity of the participants in international tax policy, including EU institutions and a more energized G20. With that shift in participants came the possibility of cooperation that in turn led to the emerging norm of full taxation, developed in the first and second phases of the BEPS project. This norm, although not yet fully specified (and in the earliest implementation likely to reach only the very largest taxpayers), will displace the old emphasis on minimizing double taxation. This expansion of cooperative participants also makes possible agreement rejecting unilateral actions (including digital taxes) and embracing multi-lateral enforcement mechanisms. Among these mechanisms are more transparent reporting and what Mason calls “fail-safe” devices that reduce the incentive for jurisdictions to cede their right to tax by providing a contingent right to tax in others.

In sum, Mason’s new article, paired with her prior work on the subject, will be valuable to those of us teaching tax in law schools who have a vague sense of the way the old regime was supposed to work, but have not paid much attention either to the ways in which the old regime has failed on its own terms, or to the ways in which it falls short of the needs of an increasingly globalized economy. Those who read Mason’s work to understand the political economy behind the introduction of these changes will find the effort well spent.

Racialized Frictions in Tax Administration

Sep 23, 2021 Leigh OsofskyAdd a Comment

In Tax Administration and Racial Justice: The Illegal Denial of Tax Based Pandemic Relief to the Nation’s Incarcerated Population, Leslie Book tells the remarkable story of the Coronavirus Aid, Relief, and Economic Security (CARES) Act emergency relief payments and the incarcerated population. In addition to having numerous plot twists and turns, the story underscores an important, underexamined issue: when the government administers the law, it imposes burdens (or frictions) on the public. These burdens may be borne disproportionately by different groups, including along racial dimensions. Anyone interested in agencies, tax administration, or race and the law would benefit from reading Book’s paper.

As Book describes, when Congress passed the CARES Act, it authorized the IRS to pay out economic relief payments of $1,200 (for adults) and $500 (for dependent children) as “rapidly as possible.” The IRS dutifully did so, including by making approximately $100 million in payments to federal, state, and local prisoners by April 2020. However, the IRS then inexplicably reversed course, deciding that prisoners were not eligible to receive the economic relief payments, but not providing any basis or explanation for its reversal. The IRS tried to recover the payments it had previously made to prisoners as allegedly erroneous and issued a Frequently Asked Question (FAQ) on the IRS website indicating that any incarcerated individual who had received a payment needed to return it to the IRS. Leiff Cabraser, a public interest law firm, brought a class action lawsuit on behalf of incarcerated individuals and eventually won in district court. The court ordered the IRS to change its position regarding prisoners’ entitlement to the payments and ensure that eligible, incarcerated individuals received their payments. Notwithstanding this court victory for incarcerated individuals, difficulties in the IRS’s administrative process prevented many from receiving the payments in 2020, undermining the IRS’s ability to meet Congress’s mandate of making the payments “as rapidly as possible.”

The story Book tells is remarkable on a number of levels. First, it illustrates the power (and limitations) of the IRS’s ability to effectively make law through tax administration, including through informal FAQs. Second, Book explains how the IRS’s actions had a disproportionate impact on Black and Latino individuals, who comprise a disproportionate share of the prison population. He points out that the IRS’s actions, which occurred in the wake of George Floyd’s murder, are yet another example of how our laws systemically subordinate people of color. In so doing, he underscores how even technical corners of the law can be important sources of inequity.

In perhaps the most powerful part of his paper, Book describes, at a theoretical level, how the administration of the law in general can create racialized burdens. Book draws on the work of sociology and public administration scholars to explain that, as a general matter, individuals experience frictions, or burdens, when attempting to collect benefits from or otherwise interact with the government. This insight may be particularly interesting to tax scholars, who have long paid attention to frictions in the substantive tax law, but have paid less attention to how they also operate in tax administration. Even more importantly, as it turns out, these burdens in the law’s administration are not equally distributed across the population, but rather tend to be concentrated on groups with fewer resources and less power, including groups that fit into these categories on the basis of race. Moreover, the government’s decisions can affect the amount and incidence of the burdens that people face. For instance, shortening voting hours in certain communities can raise the burdens incident to voting in such communities. Likewise, as Book powerfully demonstrates, publicly stating that incarcerated individuals were not eligible for economic impact payments, demanding repayment, requiring them to bring a lawsuit challenging the IRS’s position, and even making receipt of payments difficult after they won the lawsuit, created high burdens for incarcerated individuals to receive such payments. While it is remarkable that prisoners were ultimately able to overcome such frictions in the story that Book tells, the broader lesson he draws is a sobering one: in its administration of the law, the IRS, like all other agencies, has an awesome power to increase burdens that can subordinate the goals of the law that Congress passes. In the process, agencies can marginalize communities of color in ways that compound existing power imbalances.

However, another lesson we can take away from Book’s story is a more optimistic one. By recognizing the role of agencies in creating burdens in the administration of the law, we also can see a path to decreasing them. Book offers a number of good suggestions for the IRS at the end of his article, including that the IRS should use transparent and accountable guidance, the IRS should be mindful of the burdens that its administration of the law creates, and that the IRS should be particularly careful in considering how any such burdens disproportionately impact communities of color. Book’s suggestions merit serious consideration by the IRS. Carefully considering frictions in tax administration, and being alert for racialized burdens, will make the agency better. Beyond tax administration, Book’s article offers a useful, detailed story of why the details of the administration of the law matter, and how careful attention to the details of such administration can be critical to a more just society.

Tax and Race

Aug 9, 2021 Susan MorseAdd a Comment

Almost twenty-five years ago, Professor Dorothy Brown started writing law review articles (such as here, here and here) in which she applies critical race theory to tax law. This year, she published The Whiteness of Wealth, a book that not only claimed waves of popular and media attention but also provides a definitive statement of her longstanding scholarly project. The book offers a detailed case study of structural racism in law. It merits sustained attention from teachers and researchers, tax and otherwise.

Brown’s project has a descriptive component and a normative component. The descriptive component is based in cold logic, though made more accessible with stories from original interviews and from Brown’s family history. The logical equation is this: facially neutral tax law doctrine plus empirically different experiences based on race equals disparate impact that systematically favors white taxpayers and white wealth. In 2016, the median wealth of Black households was $17,100; of Latinx households, $20,600; of white households, $171,000. (P. 18.) Brown explains that tax law–not personal choice–explains a large part of this wide and persistent divide. She further argues that as a normative matter, equity and fairness require tax policy to reject rules that disadvantage “black families’ financial and social structures.” (P. 41.)

Here are three illustrative examples from Brown’s book: First, marriage. Brown presents data that shows that Black married couples are systematically less likely to be single-earner couples and more likely to be dual-earner couples, each as compared to white couples. The gap is eight percentage points at household income of $50,000 and grows with income. (P. 51.) This means that, holding income constant, white married couples disproportionately and systematically benefit from the exclusion of imputed income from household services and from the marriage bonus that produces lower tax bills for a single earner when he marries. Black adults who are single (a larger proportion compared to white adults) do not benefit from the marriage bonus either. (P. 57.)

Next comes homeownership. The tax law does not tax imputed rental income from owner-occupied real estate, and it allows deductions (subject to some limits) for mortgage interest and property taxes. These tax breaks increase the value of existing residential real estate. But only 44 percent of Black households are homeowners as compared to 73 percent of white households. (P. 85.) And among Black homeowners, Brown explains that “the average black homeowner lives in a neighborhood that is 51 percent black [and] property values start falling when black presence in the neighborhood exceeds 10 percent.” (P. 81.) Based on these data, homeownership is not a safe investment for a Black household, but rather a risky bet that could well produce a loss. On the other hand, most white homeowners will see their homes’ value increase over time. Yet the tax law disallows losses and exempts most gains on sale of owner-occupied real estate.

The third example is retirement savings. Brown explains that Black Americans “consistently [say] they prefer to invest in housing and life insurance,” not in the stock market (P. 179) and that “[w]hite middle-class families are more than twice as likely as black middle-class families to own stock.” (P. 175.) Thus, the retirement and other savings preferences in the tax law that begin at the starting point of an investment account help white taxpayers more than Black taxpayers.

Brown explains that race discrimination supports the results in each of these examples. Black couples are more likely to be dual earners in order to mitigate the job insecurity and lower wages that result from labor market discrimination. (P. 41.) White homeowners’ current preferences for avoiding neighborhoods with any significant proportion of Black families–in addition to the legalized segregation and redlining of the past–drives disparate housing market results. (P. 87.) Risk aversion in investing is a predictable outcome of systemic racism, which produces more risk, and thus more risk aversion, for Black families in nearly every aspect of life. (P. 181.)

The normative portion of Brown’s argument rests on a broad foundation. She argues that equity and fairness require the tax law to reject rules that disadvantage “black families’ financial and social structures.” (P. 41.) Brown’s argument finds a parallel in recent work in law and political economy (for instance here, here and here) that argues that part of law’s task is to address structural inequities, including those that appear because of the interaction between the market and the law.

Brown follows the logic of her normative claims to their full conclusions and recommends sweeping changes to core individual income tax provisions of the Code. As to marriage, Brown would adopt single filing. (P. 61.) As to homeownership, she would allow loss on sale, tax gain on sale and disallow deductions for property taxes and mortgage interest. (Pp. 89, 93.) (Brown does not propose the taxation of imputed income from household services and homeownership.) As to retirement savings, she would repeal all incentives–although in a later section she also points out that so long as these and other incentives exist, Black Americans should consider taking advantage of them, for instance by investing in the stock market. (P. 212.)

Indeed, Brown would repeal all exclusion and deductions and special rates, including the deduction for state and local taxes and lower rates for capital gain. The reason is simple: these disproportionately benefit wealthy Americans, and thus white Americans. (Pp. 206-07.) Instead she would enact a living allowance deduction and a refundable tax credit paid to those with less wealth. (P. 209.)

Brown writes that the idea of a refundable wealth-based credit is second-best compared to the first-best idea of paying reparations. (P. 216.) Brown’s support for reparations aligns with the view expressed in Boris Bittker’s seminal 1973 book. Her analysis not only explains the tax law’s role in producing racially disparate wealth (which Bittker does not mention) but also provides a modern tax expenditure design twist. How might her first-best choice of reparations payments be delivered? Through a refundable tax credit available to all Black Americans. (P. 216.)

Brown is well aware of counterarguments to her proposals. Take transition costs, such as the reduction in home values that would result from the repeal of residential real estate tax advantages. As she writes, this would reduce home values for a large majority of American households, including for the 44% of Black households who own homes, and including for Brown herself. (Pp. 90-91.) But Brown’s goal is simply bigger and more important than avoiding pricing disruptions in the housing market.

The proposals Brown makes for broad-based income tax reform generally draw support for other reasons, including economic efficiency and administrability. Eliminating special deductions and exclusions and tax rates tends to reduce excess burden distortions, and also tends to reduce tax law complexity. But to the extent there is any tension between Brown’s fairness claims, on one hand; and efficiency or administrability concerns, on the other hand, Brown does not accept any caveats. She has a clear and different goal, and that goal is grounded in vertical and horizontal equity and based on race. Her point is that the tax law should reverse its history of quietly and inexorably increasing the racial wealth gap because that is the fair and right thing to do.

Brown’s book is an instant classic. This is so both because of what it reveals about tax law and because of Brown’s method of marshaling statistics to reveal disparate impact in a technical area of law. Read it!

Comparative (Tax) Scholarship is for Everyone, and Everyone Can Make It Better

Jul 14, 2021 Neil H. BuchananAdd a Comment

Justice Louis Brandeis famously described U.S. states as “laboratories” in which citizens can authorize their sub-national governments to “try novel social and economic experiments.” His logic surely also applies to nations as well, with countries around the world offering a wealth of real-world experiments from which we can all draw valuable insights.

Kim Brooks knows quite a lot about comparative legal scholarship (tax studies in particular), but she understands that most people have only passing familiarity with that vast body of literature. She also understands that most every scholarly enterprise could profit from a comparative perspective but that most scholars do not have the time or inclination to become full-on comparativists. What to do?

Brooks’s answer is to offer what she cheekily refers to as a hitchhiker’s guide, by which she means a practical immersion into just enough of the concepts of comparative scholarship to allow relative novices (like most of us) to enhance our analyses by looking beyond our own countries. She demonstrates, in short, that it is not necessary to become a Comparative Legal Scholar to engage usefully in comparative scholarship, and she shows how to do so carefully and with sufficient sophistication for any particular project.

She argues, moreover, that allowing scholars who do not view themselves as comparativists nonetheless to engage in the field strengthens the overall project, rather than weakening it.

The best way to understand comparative scholarship, as Brooks explains, is to understand the different purposes that it serves. She therefore sets out a taxonomy of those purposes (a total of eight), helpfully grouped into three categories. For example, the most basic group is “doctrinal” studies, which can have three purposes: better understanding one’s own country, better understanding another country, and drawing general conclusions about an area of law.

Brooks uses tax law as her framework throughout; but because she is surely correct that her analysis extends beyond tax into other areas of legal scholarship–and beyond law as well–I am paraphrasing her analysis by omitting specific reference to tax law. (This is why I put the word “tax” in parentheses in the title of this jot.)

Brooks offers five additional purposes of tax law, three under the category “normative” and two under “explanatory” scholarship, but the first category (“doctrinal”) alone shows how richly rewarding even a small amount of comparative scholarship can be. For example, a large amount of my own scholarly work explores the U.S. Social Security system. Although various American states do offer various types of retirement benefits, there simply is no way for a national pension system like Social Security to leave room for a “laboratory of the states” approach to policy. That is, because Social Security is by design (nearly) universal and constitutes a legal minimum below which no state’s government will be permitted to allow its citizens to fall, any innovation in the states will be limited to possibly supplementing the federal system.

Other countries, however, can and do run retirement systems with different financing mechanisms and eligibility rules. Comparative scholarship, then, allows us to ask questions about how retirement systems are–or could be–structured. Although I have never for even a moment considered myself a comparativist, I did have the opportunity a few years ago to spend time in Australia, devoting some of my efforts to studying their “superannuation” system (commonly just called super). Super is a particularly helpful comparator to the U.S. system, because Australia’s system is–at least as a matter of form–entirely individualized, in contrast to our collective pay-as-you-go system of intergenerational support.

A comparative study limited to those two countries alone, then, can provide avenues to achieve at least two of the three doctrinal purposes that Brooks lays out: better understanding the U.S. Social Security system, and better understanding Australia’s super system. Moreover, it allowed me (a la Brooks’s third purpose) to draw certain important conclusions about retirement law – among the more important of them being that Australia’s political system has had to respond to the risks of an individualized system by putting up safety nets so significant that they begin to mirror our universal system, and that the administrative costs of an individualized system dwarf the modest costs in the U.S.

Again, these insights are available even after dipping only a few toes into the comparative scholarship pool. That is, it was not necessary to become a comparative law expert to compare the legal frameworks of the two countries’ systems, and only a bit of very basic investigation into the stated legislative purposes offered by the countries’ lawmakers offered helpful insights, allowing an observer to achieve at least the first two purposes in Brooks’s taxonomy.

Moreover, Brooks notes that the decision about how many countries to include in a comparison is itself very specific to context and scholarly purpose. If, for example, I wanted to claim that the U.S. Social Security system is superior to all others, or even to claim that our system works relatively well, I would need to study additional countries, chosen on the basis of the details of their systems (financing mechanisms, eligibility, whether the systems are public or private or a hybrid, and so on) so that it would at least be plausible to make such broad (if tentative) assessments. On the other hand, studying only two countries still allowed me to draw the more limited conclusion that a nominally individualized system ends up functioning surprisingly similarly to a collective system–an observation that is striking because it is so counterintuitive.

As Brooks is very much aware, there is a certain amount of artificiality to her eight discrete purposes of comparative scholarship, and there is thus inevitable overlap when thinking about any particular comparative inquiry. In the case of retirement policy, for example, Brooks’s seventh purpose–“To Explain Why a Country’s Laws Are the Way They Are (and Why They Differ or Are the Same as Other Countries)”–inevitably overlaps with the third purpose–drawing general conclusions about an area of law. Why does Australia limit investment options? Why does the U.S. not offer opt-outs? Finding the answers to these questions is easier when comparing the two countries than when analyzing either one on its own.

Brooks is surely right, then, in arguing that having non-comparativists engage in comparativism–but only as much as is necessary, and with context in mind–enhances any legal or policy analysis. And because even amateur comparativism is nonetheless comparativism, having more people engaging in it can only help the overall enterprise. We can all, then, better evaluate the quality of our own and each other’s work, once we bear in mind how and why Brooks’s taxonomy disciplines the inquiry.

Update of Jotwell Mailing Lists

Jun 27, 2021 JotwellAdd a Comment

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Tax section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

Race and Class in Tax Policy Scholarship

Jun 18, 2021 Daniel ShaviroAdd a Comment

Too much of a good thing can sometimes be not so good. A case in point is reliance on optimal income tax scholarship, dating back to James Mirrlees’ Nobel Prize-winning work, to treat the generally assumed declining marginal utility of income as the only reason (apart from egalitarian preferences) for favoring progressive tax and other fiscal policies. As I wrote in a recent book (Literature and Inequality): “Declining marginal utility is important, but it falls far short of capturing the full significance and effects of … inequality in human society. We are not just isolated consumers, growing increasingly more sated as we fill up on pizza slices, or ever more jaded as we push further towards the frontiers of fine living. Rather, we are an intensely social species, and often a rivalrous one, prone to measuring ourselves in terms of others, and often directly against others.” On that ground, if one believes (as I do) that extreme high-end inequality has pervasive adverse effects, one may reasonably support imposing tax burdens on the rich going well beyond those that would be deemed to have a positive net effect if one were focusing solely on the marginal utility of own consumption and leisure.

So far, so good. But while evaluating issues of class, tax scholars (myself included) have often given far too little distinct attention to issues of race. Poisonously entwined though class and race are in the United States, it has become ever clearer that “racial disparities [are not just] … economic inequalities in disguise.” Thus, we should not think that “if we address class issues, we can fix racism.”

Like class issues, race issues show both the inadequacy of declining marginal utility from own consumption as a full psychological (or normative) model, and the importance of status considerations to social behavior and preferences. Racism is not just about animus, but also about the impulse to feel that one is better than other people. Understanding the impact and implications of racial, no less than class, inequality requires a broad sociological inquiry. For U.S. racism today, I know of no better recently published starting point to such an inquiry than Isabel Wilkerson’s Caste: The Origins of Our Discontents.

In this book, Wilkerson explores startling, yet to me highly persuasive, comparisons between American racism and both (1) the caste system in India, and (2) anti-Semitism in Nazi Germany. She also examines such topics as the psychological appeal to poor and middle class whites of being able to think of themselves as above someone else in the hierarchy, potentially causing them to view it as in their self-interest to support white supremacist plutocrats, even if this comes at the cost of their own economic immiseration. Plus she helps to show the extreme difficulty, verging on impossibility, of avoiding the contamination of one’s own mind and behavior by racist beliefs and attitudes, when one lives in a society where they are so fundamental and prevalent, even if one consciously tries to reject them. There is no COVID mask for the racism in our social environment.

Bringing Wilkerson’s work into the tax policy realm raises a host of tax policy issues, both normative and empirical, that will occupy scholars for some time. Suppose one started out by modifying the standard model, based on declining marginal utility, solely by recognizing that people’s experiences of subjective wellbeing may reflect their concerns about relative status, along with their animus towards others. Does this imply counting positively such sources of subjective utility as racists’ enjoyment of hurting people in disfavored groups, and of feeling superior to them? But if we decline to attach positive weight to utility that reflects such sentiments, where and how do we draw the needed lines?

These sorts of questions are familiar in the philosophical literature concerning welfarism. In the tax policy realm, however, they could be treated as tangential, or even as effectively irrelevant, so long as analysts were focusing solely on the marginal utility of own consumption. With our improved understanding and focus on both racism and classism, we will no longer always have the luxury of thus simplifying the analysis.

Another standard chestnut in debates over welfarism concerns the choice between focusing on utility today, as opposed to over the long run. Even if one accepts a long-run focus philosophically, there may be prudential reasons for downplaying it analytically, given the difficulty of predicting the future accurately, and the scope that relying on it may give, for example, to totalitarian scoundrels who use the promise of a future paradise to rationalize injustice today. To me, however, Wilkinson’s work makes it clear that we need to focus on eradicating white supremacy in the United States, even if there are bumps along the way. This includes, although of course it is not limited to, aggressively addressing racial economic inequality.

Other work further shows the interaction of tax and caste. Dorothy Brown’s work emphasizing, demonstrating, and particularizing race’s fingerprints all over U.S. tax law is especially helpful. In the wake of her important new book, The Whiteness of Wealth (which is the subject of its own forthcoming JOT), this work is finally getting the attention and influence that it deserves. She shows, for example, how tax rules concerning home ownership, retirement saving, and household or filing status both increase racial wealth disparities (adjusting for class) and reflect racial power imbalances.

How should a given tax rule’s disparate racial impact affect our overall judgment about it? Directionally, it is strongly adverse. As to the above items, even without considering racial disparity there is ample ground for disfavoring our tax system’s (1) treating home ownership preferentially; (2) relying so heavily on voluntary saving, much of it through employer plans (and with tax benefits that rise with marginal rates), to address inadequacies in retirement saving; and (3) treating traditional one-earner married couples so much more favorably than singles and two-earner couples. These rules’ adverse racial impacts add substantially to the already strong cases against them.

This short review is not the right place to begin considering in depth just where a sociological grasp of racism (drawing on Wilkerson’s work), allied with an empirical understanding of how existing tax laws affect racial inequality (drawing on Brown’s work), and supplemented as well by further normative analysis, might lead the still-nascent literature on taxes and racism. But this is a key direction in which we need to go. Wilkerson and Brown have performed a huge service in helping to point the way.