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.

Invisible, But Taxed: Gender, Power, and the Tax State

Sep 1, 2025 Afton TitusAdd a Comment

Afton Titus

This article’s importance lies in its boldness to say the quiet parts out loud–-that tax systems rely on gendered assumptions and reproduce inequality. In doing so, this paper argues that the tax systems in Europe (and others globally) quietly and invisibly discriminate against women. More importantly, this fact is somehow not the focus of comprehensive study in either feminist or political economy research, although this is slowly picking up traction in tax scholarship. This paper asks frankly: Why is taxation not more commonly treated as a site for gendered power? And what do feminist research and political economy scholarship lose by its invisibility? In short, this paper is an appeal for scholars to bring their feminist and political economy insights into the study of taxation.

As such, this paper is mainly addressed to scholars of political economy and feminist public policy. However, tax scholars may find themselves susceptible to this call as well. Tax scholars may see this paper as an invitation to anchor normative tax debates in political theory and feminist institutional analysis. It may also pique their interest to answer the questions Seelkopf very pointedly asks. These are questions like: How does the tax system in your jurisdiction affect women differently? Does your country still have joint filing, and what are its effects on women? What effect do VAT exemptions have on women in your jurisdiction? Seelkopf tackles both issues directly. Drawing on economic literature, she shows that joint taxation substantially raises the marginal tax rate faced by secondary earners, who are overwhelmingly women, thereby deepening gender‐based income disparities. Turning to VAT exemptions for feminine hygiene products, she finds that empirical studies on whether these lower prices or increase corporate profits are inconclusive, although there have been lower prices for non-brand products noted.

These are just a taste of some of the intriguing questions Seelkopf raises in her bold paper. Tax scholars may find this paper light on technical details, but that is perhaps the point. It argues that tax systems reproduce gendered power dynamics and says little on how specific tax instruments or laws do so; that is for the reader to fill in.

For me, what is most striking is the clarity with which this paper frames the very basic underpinnings of taxation into a gendered understanding. For instance, what could be more basic than the understanding that taxation is based on the acceptance of the social contract, meaning that the state must have an idea of who the average taxpayer entering into that contract is? Seelkopf explains that many tax systems today still rely on an outdated male-breadwinner model. This reflects a social contract where women are seen as secondary earners, dependents, caregivers whose tax contributions are either undervalued or unseen altogether. Then, when we seek to debunk this assumption by resorting to technical data we are confronted with the inability of datasets to do this very thing. In those produced by the OECD and many other countries, the assumption that the ‘typical taxpayer’ is either a single male or a male sole breadwinner in a nuclear family is still deeply embedded. Seelkopf makes a good point here. It is therefore heartening to see some literature addressing the implications of tax policies for women workers, and ways in which the social contract should change to reflect modern reality. However, there is still much that needs to be done.

This a sobering realization. But not, perhaps, a new one. What sets this paper apart for the message that it carries today, is that it is so clear about the loss scholarship suffers through this situation. By ignoring the gendered effect of taxation, both feminist and political economy scholarship miss how tax policy actively reproduces inequality and social hierarchies. Moreover, the absence of the link between gender and tax policies obscures key political economy puzzles in that it becomes harder to explain policy choices and fiscal legitimacy when half of the population’s fiscal relationship with the state is either mischaracterized or ignored. Finally, the absence of gender analysis exposes flaws in the basic categories and assumptions of political economy. Seelkopf explains how the use of ‘the household’ as a unit of analysis erases intra-household inequality, and how standard models assume a male subject as the normative taxpayer. This not only distorts empirical findings but also undermines the internal coherence of political economy models.

This paper is an excellent jumpstart for those seeking research interests. It accurately and succinctly identifies the research gaps while also detailing fascinating research questions springing from that gap–-questions which deserve to become research fields on their own. Moreover, it provides a compelling argument for creating and sustaining multidisciplinary research across taxation, political economy, and feminist public policy.

“I’m Not a Distortion, You’re a Distortion!”

Jul 17, 2025 Neil H. BuchananAdd a Comment

Neil H. Buchanan

The fundamental problem with orthodox economic analysis of policy issues is the lack of a clear baseline. That is, standard economic arguments revolve around moving the world from its currently impure and benighted “inefficient” equilibrium back to its idyllic efficient state (known technically as Pareto efficiency). Yet, as I have discussed here, we do not and cannot know what that perfectly efficient state looks like – or even how we would know it when we achieved it. In turn, that means that we do not know whether any particular legal change or policy intervention will move us closer to or further away from the efficient state of the world. Indeed, we might already be in that supposedly ideal state, which would mean that any changes would move us into a suboptimal world.

Rebecca Morrow’s The Income Tax as a Market Correction uses the inherent unknowability about what is and is not efficient to offer a profound (and also somewhat cheeky) retort to the many economists who call the income tax inefficient. Professor Morrow is right that having an income tax could be more efficient than not having an income tax – because, again, anything is possible in a world without a known baseline – but she goes further and argues that the income tax in the United States probably is more efficient than the alternative.

I have three small hesitations regarding Professor Morrow’s article that I should confess up front. First, any analysis that plays in the efficiency sandbox is potentially problematic in that doing so can reinforce the idea that efficiency is the “right” way to assess policy. Second, Professor Morrow could, and I believe that she should, have been even stronger in making her argument. Third, she makes a sub-argument in favor of the realization requirement, which I think is very bad policy on other grounds. Regarding my first concern, I can only say that the efficiency trope is so ubiquitous at this point that the marginal damage to the public and scholarly conversations that might be caused by reinforcing it is vanishingly small. On my second concern, I concede that Professor Morrow’s scholarly reserve is most likely more effective than my more contrarian approach might be. (Moreover, I am both an economist and a legal scholar, so I feel more comfortable openly criticizing my colleagues.) Finally, on my third concern, as the Rolling Stones put it, “we can’t always get what we want.” Reasonable minds can differ.

In any event, this is a law review article that I “like lots,” and I hope it will enjoy a wide readership.

In my own writing, most exhaustively in A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism (with Michael C. Dorf), 106 Cornell L. Rev. 591 (2020), I have emphasized the baseline problem to point out that even if one were to aspire to economic efficiency – of which the famous economist and philosopher Amartya Sen once said: “A society can be Pareto optimal and still perfectly disgusting” – the choice of legal rules that can form a baseline is fully open-ended. That is, we can determine what outcome is Pareto efficient only after we have specified the contours of contract law, securities law, tort law, criminal law, and so on.

But nothing about efficiency analysis can tell us what those contours must be. There is a Pareto efficient outcome from market transactions in a world where human beings cannot own other human beings, but there is also a Pareto efficient outcome in a world where enslavement is legal. Even the smaller questions, such as whether patents should expire in 10 years or 75 – or whether to have patent law at all – are similarly open-ended and inherently impossible to answer using economic analysis (again, because they form the basis for economic analysis). I also discussed this problem in my 2021 jot: “Bringing Law and Policy Back from the Black Hole of Efficiency-Based Analysis: Another Important Step Toward Refocusing on Justice,” (reviewing work by Professors Jeremy Bearer-Friend, Ari Glogower, Ariel Jurow Kleiman & Clinton G. Wallace).

Professor Morrow opens her foray into this debate with a delightfully unexpected personal comment: “I confess. As a tax professor, it has long hurt my feelings that economists label tax as a market distortion. My field is summed up as an impurity on the otherwise pristine complexion of the economist’s pure market.” Quite so, and well said. She and every other legal scholar have long been told that they need to let the orthodox economists tell them what is and is not efficient, and there is no shortage of economists who rail at taxes for being an abomination against Professor Pareto. Her first paragraph alone is loaded with enough trenchant observations to justify the article’s existence, but I will limit myself to one more quotation, which is the last sentence of that paragraph: “After all, could a market exist without government enforcement of market rules, and could a lasting, functioning government exist without tax?“

That rhetorical question is an update of Justice Oliver Wendell Holmes’s famous line: “I pay my tax bills more readily than any others—for whether the money is well or ill spent I get civilized society for it.” Holmes expands the importance of paying taxes to civilized society itself, but Professor Morrow wisely narrows her gaze to the essential observation that we could not even have an economy without a tax system, because there would be no one to enforce the laws (and in fact no laws to enforce). Anarchy and nihilism are not good for business.

Ah, but why does Professor Morrow put her considerable argumentative skills behind the income tax specifically? After all, Holmes can get his civilized society with a government funded by wealth taxes, sales taxes, or anything else, so long as those taxes fund the government. The economy could then function without the income tax. Why should we prefer the income tax to other methods of financing the government?

Here, Professor Morrow shows her sophisticated understanding of economics and how orthodox economists do their work. Specifically, the standard move among economists is to find a market “imperfection” that a smart economist can correct with the right policy. The most well-known example of this is in environmental economics, where “market failure” results in too much pollution, making it possible to argue that reducing pollution is a move in the right (that is, efficient) direction.

Using that style of argument, Professor Morrow identifies people’s risk aversion as the offending market failure and then explains why the income tax causes people to be willing to take greater risks. Her analysis in Section II, explaining why an income tax “un-distorts” (my word, not hers) the distortion caused by risk aversion, is especially strong. Her bottom line is that the income tax uniquely serves this counter-distortionary role. In short, she is able to make a very standard analytical move (without having to blow up the entire notion of efficiency, which is what I would do) and show that the standard economic case against the income tax is flawed.

This is the kind of deep, clever scholarship that turns the orthodoxy back on itself. It is also very well written. Professor Morrow’s work is an impressive contribution to the literature.

Opportunity Zones: A Better Path Forward

Jun 19, 2025 Dorothy Brown1 comment

Dorothy Brown

Professor Deanna S. Newton’s article, Closing the Opportunity Gap, is an example of the best of legal scholarship, one which provides a thorough critique of a well-known problem, but also engages with unique policy prescriptions designed to actually make a difference. The article discusses Opportunity Zones, introduced by the Tax Cuts and Jobs Act of 2017 and designed to “encourage investment in economically distressed areas by offering investors tax benefits.” (P. 1161.)

Professor Newton begins by acknowledging the most frequent critique of Opportunity Zones, namely “that most benefits from Opportunity Zone legislation go to wealthy investors rather than the residents within Opportunity Zones.” (P. 1161.) Her Introduction includes an anecdote about how then-Florida Governor Rick Scott designated a West Palm Beach area “that houses $100 million superyachts” as an Opportunity Zone area, but left behind “three low-income areas” because they did not receive such a designation. (P. 1162.)

Professor Newton describes clearly the tax game that is being played. If an investor profits $40 million from selling a business in 2018, and the $40 million gain is a capital gain, and the investor might be liable for $8 million in taxes. However, if the investor takes the $40 million gain and instead invests it in an Opportunity Fund (an investment vehicle to directly contribute capital to Opportunity Zones on the investor’s behalf) the investor could delay paying the $8 million in tax. If the investor keeps the Opportunity Fund investment for at least ten years, the investor won’t have to pay any tax on the difference between the purchase and sale prices for the assets originally invested in the Opportunity Fund. (P. 1163; Pp. 1173-75.)

The goal was for the Opportunity Fund to create benefits for marginalized communities. As Professor Newton tells us, “Unfortunately, Opportunity Zones have failed to meet this goal.” (P. 1163.) Opportunity Zones have contributed to gentrifying communities because they do not require residential retention or affordable housing programs. As Professor Newton deftly describes, when a community is undergoing gentrification, the community attracts new businesses and new people, which inevitably lead to higher land values and housing prices that existing residents cannot afford, with the result that existing residents are “ultimately… displaced.” (P. 1164.)

She points out the connection between Opportunity Zones and NFL Stadiums. For example, fifteen out of thirty NFL stadiums are located with Opportunity Zones, with three others next to Opportunity Zones. This allows NFL teams, stadium owners, and others the opportunity to invest in hotels, retail property, or mixed-use projects around the stadium, and receive tax breaks, all the while buying out community members and existing businesses, and pushing out others as property values increase. (And as we learned through Pro Publica reporting, sports team owners already pay low tax rates.)

Professor Newton points out that much of the scholarship addressing Opportunity Zones, with which she deeply engages, argues for their repeal. (Pp. 1176-80.) I have to admit, I was sympathetic towards much of that scholarship before reading Professor Newton’s article. She has made me re-evaluate my abolitionist mindset towards Opportunity Zones and similar tax credits. As Professor Newton describes her position, she “argues for a set of reforms that will make good on legislators’ and supporters’ good faith conviction that the Opportunity Zone program can benefit communities.” (P. 1165.) She argues for a framework that applies best practices and principles from community development scholarship, which insists “on active and direct participation by both community members and investors.” (P. 1165, emphasis in original.)

Professor Newton argues that Opportunity Zone incentives currently do not recognize the value of existing assets already in the community and do not engage the community and investors. She advocates for an interdisciplinary approach, and proposes two intriguing reforms: (i) first, that investors should be required to make a one-time “buy-in” or pay an “initiation fee” (P. 1202); and (ii) second, that a percentage of each Opportunity Zone should be reserved for current community members to invest in, which they will be able to do because the amount of the “buy-in” would be allocated to the community members and would fund their investment. She discusses the practicalities of how the amount of the buy-in should be determined (Pp. 1206-09); how the community fund should be managed (Pp. 1209-11); and how community members can accumulate assets through this approach (P. 1211-20.)

Professor Newton concludes by once again arguing that Opportunity Zones should be reformed based on community development principles. It is an argument with the potential to transform marginalized communities. “Opportunity Zone reform must include participation by investors and community members in the decision-making process, in program implementation, and in benefit sharing.” (P. 1221.) But the truly radical nature of her argument is how she envisions a future where existing community members financially and socially benefit from Opportunity Zones. Here’s hoping that Professor Newton’s vision materializes in the not-too-distant future.

Do Work Requirements Matter? New Evidence

May 21, 2025 Jon ChoiAdd a Comment

Jon Choi

Work requirements are pervasive in American social safety nets: for example, the federal Earned Income Tax Credit and Child Tax Credit both only kick in after a taxpayer makes a certain level of income. Work requirements are controversial because they exclude the worst-off (including those who are unable to work) from receiving government benefits. One important reason that they remain is that conditioning benefits on employment is thought to encourage labor force participation. But is this really true? A remarkable new paper by Jacob Goldin, Tatiana Homonoff, Neel Lal, Ithai Lurie, Katherine Michelmore, and Matthew Unrath provides compelling evidence that, at least in the context of state child tax credits, the answer is no.

In Work Requirements and Child Tax Benefits, the authors rigorously study the effects of conditioning child tax benefits on work. Their primary focus is a 2022 reform in California that eliminated the work requirement for the state’s Young Child Tax Credit (YCTC). Before this change, families needed at least $1 of earned income to receive the full $1000 credit; afterward, even non-working families qualified. The authors complement this analysis with evidence from five other states with varying child tax credit designs.

The paper is remarkably comprehensive and assembles an impressive dataset, examining different samples including Medicaid recipients and Census data to capture flows into and out of employment. The authors employ a regression discontinuity design that compares labor force participation of mothers whose children turn six just before versus just after the end of the year (which determines eligibility for these young child credits). They also develop an innovative “placebo-based tuning” methodology to optimize their empirical specification.

Drawing on administrative tax data, the authors find that eliminating the YCTC work requirement did not meaningfully reduce maternal labor force participation. Their estimates are extremely precise—the 95% confidence interval excludes reductions larger than 0.35 percentage points. The authors validate this headline finding with a variety of thoughtful robustness checks, which answer virtually every question I had (and plenty more that I didn’t) about the internal and external validity of the project.

These findings challenge conventional wisdom about work requirements. The estimated effect of eliminating work requirements is small—up to an order of magnitude smaller than the effect found in prior policy simulations. This suggests that concerns about work disincentives from expanding child tax credit eligibility to non-workers are significantly overstated. The authors’ finding that eliminating these requirements has minimal impacts on labor force participation therefore provides important evidence as policymakers weigh the pros and cons of maintaining work requirements, both at the state and federal level.

Like all good research, this paper leaves us with new questions. Why are labor supply responses so modest? The authors suggest several possibilities—perhaps the EITC’s substantial work incentives already dominate decision-making, or maybe tax credit eligibility rules aren’t sufficiently salient to influence behavior. The paper therefore provides a useful starting point for various deeper dives on extensions to its core findings.

Overall, the authors have produced a careful, methodologically innovative paper with important policy implications. Their findings suggest that we may be able to expand child tax benefits to non-working families—reaching those who may need assistance most—without meaningfully reducing labor force participation. This is an important result and definitely worth a read for anyone interested in tax or poverty law.

A Thinking Person’s Guide to Tax Conflict at the UN

Apr 22, 2025 Diane RingAdd a Comment

Diane Ring

Regardless of one’s normative perspective, international tax—both its design and its substance—is in great flux. We see this playing out at the United Nations in ongoing debates and maneuvers regarding the UN’s new role in global tax policy making, including during the first week of February 2025, as the UN debated a new framework convention process. Of course, the debate is not just about the UN but rather about the system of global taxation itself, and this debate takes place against a broader backdrop of political and economic history and current tensions beyond tax law. Where global tax policy will land in the medium term, and how much it will change, is not clear. The Global South and the Global North have articulated different visions for where tax policy negotiations should occur (UN, OECD, or other), how those negotiations should be conducted, and what substantive topics should be tackled first.

Frederik Heitmüller’s timely ICTD working paper, Scenarios for Negotiating a UN Framework Convention on International Tax, provides readers a fantastic insight into this unsettled world with an accessible yet sophisticated take on the underlying dynamics. In the face of such momentous uncertainty, with great tax, fiscal and political relevance, governments, taxpayers, researchers, business organizations, media, NGOs, and other actors are all trying to interpret, anticipate, and predict how these dynamics will play out. Not surprisingly, there is a substantial flow of commentary, interpretation, and analysis. (My own co-author and I have contributed to this deluge of material.) But Heitmüller’s January 2025 paper broke through the noise for me. I found it a valuable framing of the players, issues, tensions, and options that was both nuanced and informative. The paper opens a window onto what has occurred, and how to map the future.

As the paper provides context for the reader, it simultaneously serves as an excellent literature review, though its contributions extend far beyond that. The early pages offer a valuable snapshot of the intellectual overlays on global tax debates and point the reader to useful additional resources for exploring those arguments in further detail. Having observed the mix of high level and technical examinations of global tax debates, the paper intentionally seeks to “bridge a gap both by synthesizing the different proposals for the way forward…and by connecting them with the debate as it has unfolded.” (P. 11-12.)

For those looking to understand what has been going on in international tax over the past few years, this paper will bring you up to speed in a manner that foregrounds the complexity and messiness of the issues at stake. And for those already immersed in the turmoil of international tax, Heitmüller’s perspective and analysis will help prod your own thinking. Building on the work of other scholars, the paper constructs a frame that emphasizes the tensions among three goals: full participation by the Global South and Global North, agreement on how global tax policy should be made, and accord on the top substantive priorities in global tax reform. As Heitmüller observes, one possibility is to imagine drafting a convention that supports all three by thinking of it “as an instrument for pluralilateral rather than universal cooperation.” (P. 29.)

From here, Heitmüller launches into an examination of rationales and tradeoffs for three scenarios (hence the paper’s title): (1) a focus on institutional deficits in global tax governance, (2) a focus on a South-South cooperation, or (3) a focus on new and consensual topics. Which, if any, versions of the three paths might be embraced remains a question for the future. But as Heitmüller concludes, these dominant pressure points may themselves be joined by other “contentious issue[s]” including that of funding global tax work. (P. 11.) More optimistically, though, he suggests that engagement on any of the three scenarios has the capacity to “incrementally lead to a more inclusive and stable international tax regime complex.” (P. 33.) Whether or not readers’ share Heitmüller’s predictions or degree of optimism, “Scenarios for Negotiating” guarantees readers a richer understanding of the many competing threads underlying contemporary global tax policy debates.

Data, Value, and Power in the Digital Age

Mar 25, 2025 Adam ThimmeschAdd a Comment

Adam Thimmesch

The immense wealth being accumulated by U.S. technology companies and their owners has been apparent for some time, and events during and since the last presidential election have put this reality firmly in the spotlight. Wealth is power, and innovative data practices have allowed for a great concentration of that power among a few key companies and individuals. In Valuing Social Data, Amanda Parsons and Salomé Viljoen provide a timely analysis of this new market reality and help us to think about how our legal systems might better respond. Their article is timely and incredibly useful both for those new to thinking about the data economy and for those looking for new frameworks to address wealth and power disparities in modern society.

Parsons and Viljoen’s article is situated within a broader literature addressing the challenges created by the collection, use, and sale of data in today’s world. Companies operating in this new economy have been able to obtain powerful market positions both through their innovation and by operating outside the scope of existing regulatory regimes—tax systems included. Parsons and Viljoen explain that issue and provide useful terms and taxonomies to better understand and discuss potential responses.

One thing that the authors do particularly well is to demonstrate how tropes like “data is the new oil” fail to reflect the unique attributes and potential harms of data. Data is a valuable commodity largely because those who collect it can combine and analyze it in connection with other data, allowing informed inferences about groups of people. The authors use the term “social data” to refer to this aspect of the data economy.

Defining “social data” is necessary to their analysis, but it is largely instrumental toward a better understanding of how that data is valuable. When we think of value in the tax context, we often discuss exchange value, or the value of an asset in a market exchange. But value can, of course, mean other things. For example, value can also be discussed in ethical or sociological terms. What do we value? What values do we hold?

Parsons and Viljoen introduce these distinctions before specifically focusing on what they call “prediction value,” which is the value derived from the ability to predict future behavior. For example, by tying together purchase history, location information, and medical history, a company may be able to predict a consumer’s preferences or needs in ways that offer the company a competitive advantage. And companies may also be able to predict shifts in group behavior or desires as well, providing them with even greater market opportunities and other sources of power.

Having introduced the concept of prediction value, Parsons and Viljoen then outline three common “scripts” that companies use to extract the prediction value of social data. The first two scripts involve actions that are the type most discussed in the tax literature—selling targeted advertising and generating new revenue streams through product development and innovation. Those scripts transform prediction value into exchange value and provide monetary wealth to the companies using them.

The third script is slightly different, though, and provides the foundation for what, to me, were the most thought-provoking aspects of their article. That final script involves companies using data to cultivate and retain market power rather than to generate current cash flow. For instance, the third script could include the adoption of “strategies of innovation focused on rentiership” or the “use [of] the power cultivated via prediction value to evade or influence regulation.” (Pp. 1037-38.) Parsons and Viljoen argue persuasively that this unique script merits consideration separate from discussions about the power represented by exchange value and monetary wealth.

The foundation of Parson and Viljoen’s article is in providing these useful lenses through which to think more carefully about the data economy, and their article does so very well. The article’s observations regarding the third “script” also invite creative thinking about whether and how our legal systems can or should respond to the distinct issues created by the accumulation and non-market-exchange uses of power by those who possess social data. The final part of Valuing Social Data starts that process.

Specifically, the authors explore how prediction value “collides” with existing legal systems. Looking at the tax system and related literature, Parsons and Viljoen discuss how a focus on exchange value has led to gaps in how scholars think about taxing the digital economy. In particular, scholars and policy makers in the U.S. and abroad have struggled with how to apply existing taxes in situations where data are not directly monetized. (Consider, for example, the barter exchange of one’s data for access to online services.) Global conversations about the proper allocation of taxing power in the digital economy have similarly been impacted by the space that exists between prediction value and exchange value. Parsons and Viljoen invite new approaches informed by this disconnect, including more fundamental adaptations like taxing data collection itself rather than trying to modify existing tax instruments to fit this new market.

A final aspect of Valuing Social Data that makes it particularly compelling to readers is that their analysis is not specific to tax. The authors use tax as an example of where a better appreciation of social data and of prediction value might help to facilitate needed reform, but they also discuss data and privacy regulation, demonstrating how tax issues both mirror and interact with issues faced by multiple legacy legal systems. The failure of existing legal structures to adapt to prediction value has had widespread consequences, and Parsons and Viljoen provide us with useful tools for thinking about how to respond and for thinking about the interaction between tax and broader social movements.

In (Tax) Hindsight: When Should the Tax System Ease Taxpayer Regrets?

Jan 23, 2025 Charlene D. LukeAdd a Comment

Charlene D. Luke

Emily Cauble explores the extent to which the tax system allows taxpayers “to benefit from hindsight” in her article, Taxpayers’ Tax Election Regrets. Cauble uses concrete tax election examples to categorize the types of hindsight that cause taxpayers regret and to offer recommendations on how the tax system should approach hindsight to “bring more coherence to tax law’s approach and better align its approach with underlying policy goals.”

Cauble’s focus is on explicit, rather than implicit, tax elections; thus, the focus is on elections that require a formal indication of choice to the IRS. Cauble further considers the availability of filing a late election, revoking an election, and filing a protective election. Cauble analyzes formal election processes to highlight when an election-related decision may bring a taxpayer regret and when a taxpayer is able to use hindsight to make an adjustment to the original choice. The article concludes with recommendations for improvements to how the tax system allows hindsight, with the recommendations guided by tax policy goals relating to revenue-raising, fairness, and administrability.

Cauble describes four types of hindsight that arise in the context of tax elections and then groups them into two pairs, one pair that is generally benign or even enhances the fairness of the tax system and one pair that is generally harmful to the tax system.

Taxpayers who experience regret over their elections because they made a mistake of tax law (“Mistake of Tax Law Hindsight”) or failed to account for a fact that was knowable at the time of the election (“Mistake of Knowable Fact Hindsight”) are often afforded greater opportunity to benefit from hindsight under existing law and, Cauble argues, should generally be able to benefit when underlying tax policy is considered.

Conversely, taxpayers who experience regret over their elections because they failed to predict future facts correctly (“Misprediction of Fact Hindsight”) or because they failed to predict the IRS response (“Misprediction of Service Challenge Hindsight”) generally have less opportunity to benefit from hindsight under existing law and should have less opportunity.

Cauble uses multiple concrete examples to illustrate the current operation of these hindsight types and to recommend adjustments. One example involves elections under § 754. Under this Code section, partnerships make an election that will require tax basis adjustments relating to both the purchase of partnership interests and to partnership distributions.

A § 754 election is revocable only with government permission, so the partnership must predict the impact of the election on future taxable years when deciding whether to make the election. At the same time, a partnership generally has the information needed to determine whether making the election provides a net benefit for the first taxable year it is in effect. Thus, as Cauble highlights, § 754 elections are partly forward-looking because they are difficult to revoke and affect future taxable years (thus, requiring prediction of facts), but § 754 elections are also partly backward-looking as the partnership can know whether it will provide a benefit during the first year to which it would apply.

Hindsight could arise in the context of a § 754 election in at least two situations: a partnership could fail to make the election and then want permission to file it late, or a partnership could file the election and then seek to revoke it. Cauble analyzes both situations to highlight that Treasury Regulations and IRS letter ruling practice generally allow taxpayers to use Mistake of Tax Law Hindsight and Mistake of Knowable Fact Hindsight but usually prohibit the other two types of hindsight. As an example of Mistake of Law Hindsight, Cauble points to a 2021 letter ruling providing an extension to file a § 754 election because the taxpayer’s advisor failed to provide information about the availability of the election.  As an example of Mistake of Knowable Fact Hindsight, Cauble describes a letter ruling granting an extension because the partnership did not know that a particular partner had died.

Cauble argues persuasively that these two types of hindsight should generally be permitted as “the taxpayer merely obtains the same beneficial tax treatment that a well-advised taxpayer could have obtained without the use of hindsight.”  She recognizes that tax revenue could be lost as a result of allowing these two types of hindsight but also points out that lawmakers presumably intended to afford all eligible taxpayers access to the election. In addition, she argues that any tax revenue treated as lost could be “recouped in fairer ways” as a taxpayer using these two types of hindsight is “simply obtaining the tame tax outcome available to well-advised taxpayers.”

In contrast, the tax agencies generally limit the ability to use Misprediction of Fact Hindsight or Misprediction of Service Challenge Hindsight. For example, the § 754 regulations make clear that taxpayers who simply failed to predict facts, such as asset values, correctly will not obtain the benefit of revocation. This approach helps preserve tax revenue and also provides a fairer approach when taxpayers know the facts and have access to sophisticated advice but fail to correctly predict the future.

Cauble further argues persuasively that taxpayers could disguise the use of Misprediction of Fact Hindsight through offering explanations grounded in Mistake of Law Hindsight. In the § 754 context, Cauble notes that the IRS often states in letter rulings involving late election relief “that the partners had contractually agreed to make the election” as evidence that a procedural mistake occurred, rather than a misprediction of fact. Cauble posits that this shows insufficient skepticism as the IRS would never have reason to see these agreements as to partnerships that decide not to make the election. Cauble further asserts that the IRS should exercise greater scrutiny if there was even the “potential for the facts to change in a way that would affect whether the election was advantageous.”

This brief review of Cauble’s article only focused on one example—§ 754 elections—but Cauble explores many other interesting examples (such as the § 83(b) election and the § 475(f) mark-to-market election), and those descriptions encourage the reader to develop their own examples. Cauble shows how the tax law responds in the context of elections to taxpayer regret caused by hindsight. As a result, not only does Cauble’s article provide a comprehensive and engaging window into what could otherwise seem a somewhat dry procedural issue, her article could be used as a roadmap for developing future research and insight into how the tax system should react to taxpayers’ regret over tax decision making.

What Do We Mean When We Talk About Income Inequality?

Dec 5, 2024 Leigh OsofskyAdd a Comment

Leigh Osofsky

With the United States’s electoral season in high-swing, income inequality is sure to be a hot topic not only in academic circles, but also on the political stage. In his recent article, Ten Observations About Income Inequality, Dan Shaviro uses his trademark incisive style to pack some important insights into a quick read. For those who have thought a lot about income inequality, as well as for those who haven’t, it’s definitely worth taking a look at Shaviro’s new draft article.

Observers of the recent, important discussions regarding income inequality know that there is an empirical debate about how much income inequality in the United States has changed in recent decades. Thomas Piketty, Emmanuel Saez, and Gabriel Zucman have famously used U.S. tax returns to identify great increases in income inequality in recent decades, resulting in a concentration of income in the top 1%. However, recent work by Gerald Auten and David Splinter (which was later disputed by, among others, Piketty, Saez, and Zucman) argues that high-end income inequality is actually lower than we previously thought, and that government transfers and tax progressivity have yielded real rises in income for all income groups.

Shaviro’s article takes a step back from this empirical debate to probe what we mean when we talk about income inequality. For instance, Shaviro notes that attempts to offer one, discrete measure of inequality (for instance, through the Gini coefficient) fail to capture different types of inequality or explore why we should care about some types of inequality versus others. Very disproportionate income by the highest income individuals (whether the top 1%, or some other grouping) might pose particular problems in terms of control of the political system and threats to democracy. On the other hand, there are good reasons we might care in particular about the income of the least well-off. Perseverating about income inequality at the high-end would fail to capture these concerns.

Shaviro also notes that conventional economic approaches to inequality may fail to capture important realities of how people actually experience inequality. In this regard, the traditional economic concept of declining marginal utility of income is supposed to explain why we might want to take from people who have more and redistribute to people who have less: declining marginal utility of income suggests that those with lower income will value the income to a greater extent. But, as Shaviro observes, the sterile theory of declining marginal utility of income fails to account for interpersonal realities, like the high social costs of others having more than you. Oftentimes, these concepts would move in the same direction. But the concept of declining marginal utility of income doesn’t capture the irrational pain that people experience when they end up with slightly less than others they compare themselves to, even if they have relatively high income. What this means in terms of policy prescriptions is not always clear—but it does underscore that bare facts about inequality can only start a conversation about how income differences affect society. Likewise, Shaviro identifies important, practical considerations—like sharing within families, and changes in income over time, that make much more complicated attempts to measure income inequality across a society.

Perhaps the observation of Shaviro’s that I found most compelling was how general discussions of income inequality often fail to examine the extent to which mobility is part of the story. Shaviro suggests that we should probably feel differently about a society that has high income inequality, but high likelihood of mobility relative to income group at birth, relative to a society that has income inequality paired with little to no mobility. Building on this insight, we should probably feel even worse about a combination of high income inequality and low economic mobility if the income inequality and lack of mobility correlates greatly with immutable characteristics such as race. The nature of the problem here would not just be economic, but rather deeply social and political.

At bottom, Shaviro’s article, while short, manages to push readers to think deeply about what, exactly, the problem is with income inequality. As Shaviro acknowledges at the end of the piece, there certainly is not only one answer to this question. And many have engaged with it through many different lenses over the years. Shaviro’s take is worth a read both because it helpfully summarizes important considerations from this discussion (like interpersonal realities) and because it crystalizes others that have received less attention (like how the prospect of mobility should affect how we feel about inequality). As a result, Shaviro’s short piece is both a useful primer for newcomers to this important topic, as well as engaging read for careful students of it.