James R. Hines Jr. & Kyle D. Logue, Delegating Tax
, 114 Mich. L. Review
In modern regulatory states, the theoretically firm lines dividing the legislative, executive, and judicial branches of government are increasingly blurred. Teasing out how to design and enforce effective regulation has become a major preoccupation of scholars and policymakers in every area of law.
Delegating Tax, an article by the talented James R. Hines Jr. and Kyle D. Logue, is wonderful reading in that light. The article contrasts the reluctance of Congress to delegate the lawmaking authority of the IRS and Treasury in the tax area with Congress’ increasing willingness to delegate that authority to other federal administrative agencies. The authors make the case for great delegation in the tax area, noting the potential for the executive branch to draw on greater expertise and to respond more quickly.
Hines and Logue create a taxonomy of delegations that they urge Congress to consider: delegation of parameters for tax subsidies to the Treasury Department, delegation to set some income tax rates to an independent agency like the Federal Reserve, and delegation of tax reform to an independent commission. Hines and Logue would reserve the ability for Congress to fix the distribution of tax liabilities to ensure “fair distribution.”
I enjoyed reading the whole article, although my favourite part was the authors’ efforts to answer the question, “Why should the regulatory approach to tax policy differ from regulatory approaches to other areas of federal policy?” (P. 259). They examine historical accident and path dependence and the value of retaining the ability to set rates with Congress as a key tool in facilitating bargaining in the legislative process. They find each possible justification to be wanting.
The piece concludes with an exploration of the constitutional constraints on expanded tax delegation. Ultimately, the authors conclude that their proposed delegations should “pass constitutional muster” (P. 271).
The article takes on the broad areas where more delegation might appropriately be considered as a mechanism for accessing some of the benefits of the executive branch. The authors acknowledge at the outset of their piece that Congress could replace the Internal Revenue Code with a single sentence, “The Department of Treasury shall promulgate all tax rules necessary to raise revenue sufficient to balance the federal budget and shall do so in a manner that is fair and efficient” (P. 238), although they do not recommend that approach. The Hines and Logue article provides the platform from which readers can ask additional questions about delegation among the branches of government in the drafting of every provision in the Internal Revenue Code (or any piece of legislation, for that matter).
The question of the appropriate balance among the legislative, executive, and judicial branches in tax lawmaking is not unique, of course, to the United States, although the balance struck in the United States has unique features. Hines and Logue’s article contributes to the conversation highlighted in comparative work on this same topic advanced by Chris Evans, Judith Freedman, and Richard Krever in The Delicate Balance: Tax, Discretion, and the Rule of Law (IBFD, 2011). It’s a pleasure to see that the dialogue continues.
The world of international tax avoidance is a colorful one. There are the legal structures, with names like the “Double Irish Dutch Sandwich,” the exotic locales, like Bermuda and the Cayman Islands, and the identity crises presented by “hybrid” entities and financial instruments. But rarely does international tax avoidance have a human face and one could be forgiven for getting the impression that falling effective corporate tax rates are as inevitable as water flowing downhill. Corporations, acting in the interests of their shareholders, maximize their after-tax profits. States, acting in the best interests of their residents, set tax policies that are incongruous with the policies of other states. The “bad actors,” if there are any in this story, are corporate aggregates of one sort or another, multinational corporations and tax haven countries.
But the LuxLeaks scandal has given us one human face that stands out from the crowd of aggregates. This is the face of Marius Kohl or “Monsieur Ruling,” the former head of the Luxembourg agency, who gave rulings to taxpayers on the tax treatments of their proposed transactions. In The State Administration of International Tax Avoidance, Omri Marian does a wonderful job of explaining how this one bureaucrat acted to facilitate massive tax avoidance by engaging in “arbitrage manufacturing.” Marian argues that rogue individuals pose an ongoing threat to international tax cooperation. His paper clearly explains how arbitrage can be manufactured, documents how it was done in Luxembourg, and draws from the LuxLeaks episode an important lesson about the need to integrate micro reforms of tax administration into the macro project of international tax harmonization efforts.
This emphasis on individual actors, including not only Kohl but also the relatively small number of accountants and tax advisors working in on behalf of US and UK clients in Luxembourg, is one of the significant contributions of the paper. States and their regulatory agencies do not make decisions, individuals do. Those individual decisions are the results of their own private calculi, and shifting attention to individual incentives and constraints is an important analytical step. We cannot assume that tax administrators’ preferences necessarily align with best interests of their own country. Shifting attention to the incentives and constraints of the decision-makers themselves will force us to confront the monitoring, supervision, and optimal incentive structure problems for tax administrators that we do in other settings. The problem with Kohl was, in some sense, another example of regulatory capture, but one that has received little attention in the international tax compliance context where, as Marian notes, the focus has been on the harmonization of substantive tax laws.
Marian grounds his argument in an original data set. By thoroughly reviewing 172 tax rulings, Marian is able to provide a broad account of Kohl’s ruling practices as tax administrator. He reports descriptive statistics about the kinds of taxpayers who sought rulings, the time that was spent reviewing the applications, the legal issues on which rulings were sought, and the names of the tax advisors who submitted the rulings. Marian is generally persuasive in arguing that it is implausible that Kohl could have given the applications more than a cursory review, given the time that he spent with them; however, he cannot completely rule out the possibility that the ruling applications merely reflected agreements negotiated in advance between Kohl and the taxpayers. But this is a minor point in light of all of the other evidence Marian presents to suggest that Kohl was fully pliant. Although Marian does not compare the merits of the positions taken in the ruling applications with the particulars of Luxembourg law, the indirect case he makes for Kohl rubber-stamping the applications is compelling. Most damning is that Kohl afforded the same financial instrument different treatment in order to comply with different taxpayer requests.
Marian has done a service by compiling a dataset from these rulings, but in addition to the effort involved in hand-coding this new dataset, there is much to admire about the restraint and care that he demonstrates interpreting it. He is forthright about the limitations about what can be generalized about tax administration from this one episode, and fastidious about noting potential issues. When evaluating any empirical study, the reader must be able to assume that the author has done the analysis with integrity and has carefully considered and set forth the key assumptions of the approach. This paper gives every indication that Marian is a trustworthy guide.
The OECD’s project on base erosion and profit shifting includes a proposal that would address the particular debt/equity arbitrage that was most common among the transactions approved by Messr. Ruling. This proposal would require matching, so that a payment that was not includible in income in the payee country could not be deductible in the payor country. This is a good rule. But Professor Marian’s point, ably illustrated by the case of Marius Kohl, is that it is insufficient to harmonize substantive tax laws. Certainly this needs to be done, and harmonization must cover as many countries as possible. But in the final analysis it will be individuals who make enforcement decisions and rule on ambiguous cases.
In this realm, like so many others, we need to think about how to police the police. Doing this effectively requires understanding what motivates bureaucrats and regulators but, unfortunately, investigations into the LuxLeaks scandal have provided few answers to this question. Neither Marian nor the journalists who have covered the story have been able to explain why Kohl acted as he did. Was he compensated? Did he relish the power to give people what they wanted? Was he merely indifferent to the performance of his duties? Marian provides a valuable contribution in drawing attention to the powers of individual actors. Further work should focus on what motivates those actors, so policymakers can design the proper incentives and monitoring regimes to regulate them.
Shannon Weeks McCormack, Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze
, 114 Mich. L. Rev.
___ (2015), available at SSRN
Childcare costs have soared in recent years while wages remain stagnant. To make matters worse, relief by provided by the tax code is extremely limited. Parents may be able to claim a tax credit for a portion of their childcare costs and may be able to divert limited funds to a pretax flexible spending account. But in many cases, these tax benefits capture only a minor portion of parents’ costs. It is no surprise, then, that with an election year upon us, a number of proposals to expand the current childcare tax credit have resurfaced in recent months. These proposals echo years of debate over whether the tax system discourages work by secondary earners and treats working parents unfairly vis-à-vis their non-parent counterparts.
But current proposals to modestly expand the childcare credit will make only a small dent in working parents’ childcare costs. Recognizing the inadequacy of such an approach, Shannon Weeks McCormack proposes a more fundamental reform in her forthcoming article, Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze. The childcare tax credit, she argues, should be replaced with an above-the-line deduction for childcare expenses that is not subject to phase-outs or dollar limitations. In essence, Weeks McCormack calls for according childcare expenses the same treatment as deductible trade or business expenses.
The debate over whether childcare expenses represent personal consumption or the cost of earning income has been well documented by scholars. On the one hand, having children generally represents a personal choice and childcare expenses are not incurred by all workers. On the other hand, childcare expenses are often a “but for” cost of earning income, much like deductible business expenses. This debate began, however, in a time when secondary wages (generally earned by women) were often discretionary. In years past, a mother who “chose” to work and hire a caretaker for her children was, arguably, making an elective decision. What Weeks McCormack’s article adds to this debate is a fresh and much-needed modern perspective.
As Weeks McCormack states, “Today, most two-parent families consist of two earners and require at least two incomes to meet their needs. The pressure to find work is even greater for single parents. . . .” Indeed, the reality today is that many (if not most) parents purchase childcare services because they must work outside the home to make ends meet. And, Weeks McCormack notes, childcare options are often limited. Daycares may have waitlists and working parents may purchase more expensive in-home childcare services because they cannot afford to take off of work if their child gets sick. These facts not only cut against the presumption that childcare costs are elective, but they also undermine the presumption that parents pay caregivers only the perceived consumption value of their services. When viewed in this light, childcare expenses look less like personal consumption today than they might have fifty years ago. To be sure, some taxpayers still receive significant consumptive benefits from childcare arrangements and would perhaps incur those expenses independent of the decision to work, a fact that Weeks McCormack acknowledges. However, because this group likely makes up a small and decreasing segment of working parents, policies that assume this potential consumptive benefit do not make sense. In other words, child care expenses in today’s world are a necessary cost of earning income for most parents, which makes them more akin to deductible business expenses.
Weeks McCormack also has an insightful take on why expanding section 21’s childcare tax credit is an unsatisfactory solution. Not only are tax credits prone to phase-outs, caps, and other limitations, but credits are often considered to be tax expenditures. This is relevant because under the Haig-Simons definition of income, deductions that represent the cost of earning income (e.g., business expenses) must be taken into account to calculate net income and therefore are not considered to be tax expenditures. If childcare expenses are also considered to be a cost of earning income, a deduction or credit for these expenses should not be considered a tax expenditure either.
Interestingly, the original version of section 21 was a (somewhat limited) tax deduction for childcare costs, which Congress converted to a credit in 1976 in order to eliminate the upside-down subsidy effect of deductions. But, Weeks McCormack notes, the legislative history to that amendment specifically described childcare expenses as a cost of earning income, and Congress accordingly rejected the notion of an income-based phase-out of the credit. However, that message was lost over time, as the credit subsequently has been pared down and subjected to both income phase-outs and dollar limits. The Joint Committee on Taxation also included the working childcare tax provisions on its list of tax expenditures, which contradicts the notion that childcare expenses are a cost of earning income.
The result, Weeks McCormack observes, is likely confusion on the part of lawmakers, who view the working childcare tax provisions as legislative “giveaways” rather than a means of properly measuring income. When considered in this light, it’s not surprising that the current regime provides insubstantial support for many working parents. Thus, Weeks McCormack argues, meaningful tax reform requires not just expanding the scope of tax relief for working parents, but reframing that relief in a manner that reflects its purpose, i.e., removing it from the list of tax expenditures and converting it to a deduction that is necessary to accurately measure net income.
Weeks McCormack also offers some interesting practical suggestions for implementing her proposal. One possibility is to enact a deduction that looks something like section 274(n)’s 50 percent limitation on the deductibility of business meals. While Weeks McCormack thinks 50 percent deductibility is too low, I think this approach could offer an attractive political compromise that would still put many working parents ahead of the current regime. And while I don’t believe that a deduction would realistically encourage parents to go out and incur lavish childcare expenses, Weeks McCormack argues that such concerns could be assuaged by enacting limitations on lavish and extravagant expenses similar to those imposed on business entertainment and meal expenses.
As working parents continue to struggle financially, Weeks McCormack’s article is vitally important and timely. Politicians and other policymakers would be well-advised to pay attention.
Lily Kahng, The Not-So-Merry Wives of
Windsor: The Taxation of Women in Same-Sex Marriages
, 101 Cornell L. Rev.
(forthcoming 2016), available at SSRN
The road to same-sex marriage was paved with a tax decision. In United States v. Windsor, 133 S. Ct. 2675 (2013), the United States Supreme Court recognized that same-sex spouses, like different-sex spouses, have the right to pass assets to each other tax-free at death. In arriving at that decision, the Court invalidated the portion of the Defense of Marriage Act that provided that the word “marriage,” for federal purposes, meant only a legal union between a man and a woman. With Windsor, a same-sex marriage that was valid for purposes of state law would be recognized for purposes of federal law. In a tax sense, Windsor put same-sex couples and different-sex couples on equal footing for federal purposes. Many commentators accurately predicted that the Windsor case laid the foundation for the Court’s recognition two years later of a constitutional right to same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
In the wake of the Windsor and Obergefell decisions, some tax scholars have drawn important attention to legal issues created in the period between Windsor and Obergefell for same-sex couples whose states did not recognize their marriages, as well as challenges faced by those who choose civil unions over marriage. Other tax scholars are wary of Obergefell’s glorification of marriage as the highest form of human fulfillment, and are skeptical that marriage is the correct foundation for a variety of procedural and substantive rules.
Enter into this conversation Lily Kahng’s thoughtful examination at how women in same-sex couples might fare from a tax perspective in a post-Windsor, post-Obergefell world. For almost twenty years, Kahng has been a leading and consistent voice in critiquing the fiction of marital unity in the tax law. In The Not-So-Merry Wives of Windsor: The Taxation of Women in Same-Sex Marriages, Kahng turns on its head the assumption that same-sex marriage is a salutary shift in the legal landscape for same-sex couples. Kahng argues that under federal law, women in same-sex couples will be taxed unfavorably compared to women in different-sex couples.
Kahng builds her argument through studied examination of three areas of tax law: the joint income tax return, the estate and gift tax marital deduction, and the earned income tax credit. By showing how these laws impact hypothetical female same-sex couples, Kahng exposes the tax law’s improper channeling of benefits based on marital status. Through specific numerical illustrations involving hypothetical two-earner and single-earner couples, Kahng shows in a practical way how the marriage penalty and marriage bonus operate. She illustrates how middle-income couples and high-income couples are the most likely to receive a marriage bonus, and how two-earner upper income couples are the most likely to experience a marriage penalty. (For anyone who has ever struggled to understand precisely how the “marriage bonus” or “marriage penalty” operate, Kahng’s elegant numerical illustrations will quell any confusion.) Kahng then takes the important step of using census data regarding labor force participation of women in same-sex couples to show that they are more likely than women in different-sex couples to experience a marriage penalty and they are less likely to receive a marriage bonus. This is because women in same-sex couples tend to have both partners engaged in market labor and more equal incomes than different-sex couples. Although the reasons for these earning patterns are beyond the scope of Kahng’s article, the next step might be to understand why same-sex female couples are more likely than different-sex couples to have two working spouses, and why that income is more likely to be more equal. One suspects it has to do as much (or more) to do with the fact that women earn less for market labor than their male counterparts than any personal preference or traits unique to women in same-sex relationships.
Building on her understanding of earning patterns, Kahng turns to the QTIP trust, gift splitting and estate tax portability to ask what couples are likely be benefit from wealth transfer tax laws that accord preferences to married couples. Kahng’s examples illustrate that all three of these techniques—QTIP trusts, gift splitting and portability—are applicable only to taxpayers who have wealth in excess of the wealth transfer tax exemption amount, or $5.43 million in 2015 ($5.45 million in 2016). And within that group of wealthy taxpayers, the control that QTIP trusts in particular afford will be especially appealing mostly to those who have less-wealthy spouses. Although Kahng acknowledges limitations in the data regarding the wealth of women in same-sex marriages, the spouses’ relatively equal levels of labor force participation and income levels suggest that their wealth levels also are likely to be equal or close to equal as well, which means that they will be less likely than different-sex couples to benefit from gift and estate tax marital preferences. To the extent that women in same-sex couples might want to take advantage of QTIP trusts and the ability to direct the disposition of trust property upon the death of the surviving spouse, it may be to protect children from prior relationships.
Kahng uses census data to convey the stark reality that female same-sex couples are more likely than different-sex couples to be living in or near poverty and the spouses are more likely to have relatively equal incomes. The reasons for this are not well understood, but Kahng explains the tax context. Again through numerical illustrations, Kahng shows that a low-income unmarried couple comprised of two individuals with relatively equal earnings will receive a greater earned income tax credit than a similarly-situated married couple. That EITC marriage penalty might discourage some taxpayers—in both same-sex and different-sex couples—from marrying. To the extent that they are more likely than people in different-sex couples to have relatively equal earnings, women in same-sex couples will be more likely to either incur a marriage penalty or be deterred from marriage in greater numbers than women in different-sex couples.
For anyone interested in understanding the tax implications of the Supreme Court’s recognition of same-sex marriage, Kahng’s article is a must-read. Writing squarely within the critical tax tradition, Kahng looks at the tax system to ask important questions about advantage and disadvantage. For years, critical tax theorists have taken up the challenge of identifying ways in which the tax system privileged different-sex couples over same-sex couples. With this article, Kahng widens the critical tax lens further, inviting readers to consider the ways that women in same-sex couples might experience the tax law differently than men in same-sex couples or men and women in different-sex couples. The quest for fairness in taxation must be a nuanced one, as Lily Kahng’s careful work demonstrates.
Cite as: Bridget J. Crawford, Widening the Critical Tax Lens
(March 23, 2016) (reviewing Lily Kahng, The Not-So-Merry Wives of
Windsor: The Taxation of Women in Same-Sex Marriages
, 101 Cornell L. Rev.
(forthcoming 2016), available at SSRN), https://tax.jotwell.com/widening-the-critical-tax-lens/
I typically begin my Federal Income Tax course discussing how tax is the one area of law that touches every aspect of life, from birth to death, from marriage to divorce, from retirement to child-care, and everything in between. Similarly, tax scholars write on topics ranging from same-sex marriage and the earned income tax credit, on the one hand, to carried interest and corporate inversions, on the other. By this point, my colleagues are surely tired of hearing me repeat how tax law has something meaningful to say about everything.
Given this incredible breadth and diversity of the tax law, why is it that most people think of tax scholarship primarily as number-crunching, or business planning, or law and economics? While I happen to be sympathetic to this point of view, primarily because it happens to coincide with my primary interests, why is it so often considered the standard for the best of tax scholarship?
Shari Motro considers this phenomenon in her article Scholarship Against Desire (“SAD”). In particular, among other things, in SAD Motro examines the role of the legal academy as a conforming institution by examining the path of one of her recent, and by all objective measures successful, articles—Preglimony. Motro published Preglimony in the Stanford Law Review and presented it at several faculty workshops (including one at Washington University) and numerous other conferences. In SAD, however, Motro details how the institutions of the legal academy—tenure, conference invitations, publication placement, among others—subtly influenced her to change the scope and focus of Preglimony from her initial normative goals.
SAD is a powerful piece of writing. In it, Motro is honest and vulnerable in a way that few legal academics are willing to be. She writes about how the desire to be accepted and validated can weaken or undermine the normative goals of legal scholarship; in her own words, how “Preglimony was like consensual unwanted sex.” SAD is compelling both as a narrative of the legal writing and publishing process, and as a familiar story of an emerging academic within the legal academy. These points notwithstanding, my initial reaction was that SAD was not necessarily “scholarship” as I typically thought of it. My second reaction was to stop and ask myself a number of questions—why did I feel this way? what contributes to the academic debate? what adds to the state of knowledge in the world? This internal debate ultimately led me to the question that became the title of this post: what is tax scholarship, and who decides?
From this perspective, by any objective metric, I have had a deeply privileged academic career and I am extremely grateful for it. But in reading SAD I began to consider to what extent I too may have faced subtle pressures that have affected my scholarship, or even worse to what extent I may have contributed to them for others. For example: if I only review articles sympathetic to my own scholarship am I reinforcing existing biases in the legal academy? Do I place models in certain articles because they are truly necessary or to impress readers? Do I submit papers to conferences to get feedback or to be included in the club? Even if I do such things for less than ideal reasons, does that really undermine my ultimate scholarly goals?
Ultimately, SAD invites, and challenges, each of us to examine ourselves as academic writers. In particular, Motro’s article prompted a realization for me, one that forced me to examine the arc of my own career. If the premise of SAD is correct, the then the legal academy as a whole, of which I am a part, (though perhaps implicitly or unintentionally) could well be imposing multiple types of conformity not only on legal scholarship, but also ultimately on ideas. Collectively, we as tax professors (and law professors more generally) can profess to the ideals of diversity of viewpoints all we want, but if the institutions we build and perpetuate undermine those ideals, then perhaps we are not truly as committed to them as we believe.
A couple of years ago I wrote that before I joined the academy the one thing I most admired and respected about academia was the nature of the scholarly debate… “Being wrong was almost as valuable as being right, so long as the ideas contributed to [the] advancement of knowledge in the world.” In reading SAD, I ultimately came to realize (admittedly slowly) that it accomplishes much of what I described as the ultimate goals of legal scholarship, even if it looks and feels completely different from what I have considered “scholarship” in the past. This is true notwithstanding that I am still not convinced that I agree with many, if not most, of the portrayals of the legal academy in SAD. Thus, upon reflection, and measured by the standard for scholarship to which I aspire, I consider SAD a successful piece of scholarship. Perhaps that is enough for a start.
Tax literature is bitterly divided on the role that tax havens play in global economy. The negative view of tax havens paints them as parasitic, poaching revenue from other jurisdictions. The positive view suggests that tax havens facilitate low-cost capital mobility, mitigating some of the distortive effects of taxation.
To date, this extensive scholarly debate has produced very little information on tax havens themselves. This is hardly surprising, since tax havens are well known to be secrecy jurisdictions. This aspect of tax havens forces scholars who write about them to resort to financial modeling or available country data – data which is rarely on point. Zucman’s book is a unique breed in this context. In order to address the role of tax havens in global economy, Zucman actually collects and interprets the necessary data. Zucman assesses the wealth held in tax havens based on a long lasting anomaly in public finance: that in the aggregate, more liabilities than assets are recorded on national balance sheets, as if a portion of global assets simply vanishes into thin air, or as Zucman put it: “were in part held by Mars.” Zucman meticulously collected macro-economic data of multiple jurisdictions, and discovered that roughly the same amount of assets missing from national balance sheets shows up as ownership interest in investment pooling vehicles (such as mutual funds) organized in tax havens.
Zucman uses his data (which he makes freely available online) to make original contributions that can roughly be divided into three parts: First, he quantifies the amount of wealth held in tax havens. Second, he explains why we should care. Third, he offers a prescription for reform. I’ll briefly discuss each in turn.
Zucman estimates the wealth held in tax havens at $7.6 trillion, or about 8% of total global wealth! This estimation is conservative, as it ignores considerable amount of wealth that is not held in financial accounts, such as works of art. The book is full of eye popping figures. For example, did you know that Luxembourg national accounts report $3.5 trillion in mutual fund shares held in the Grand Duchy, yet $1.5 trillion is unaccounted for and unreported, since all countries, in the aggregate, report their citizens only hold $2 trillion in Luxembourg mutual funds? Equally concerning is the gradual but steady increase of offshore wealth accumulation noted by Zucman, in spite of the recent adoption of measures such as FATCA, specifically aimed at addressing such issues.
This should startle us all, as Zucman clearly and painfully explains. Zucman is unapologetic in adopting the negative view of tax havens. His view is that tax havens plainly “steal” revenue from other jurisdictions. Zucman estimates that as a result of haven-based tax evasion, non-haven jurisdictions lose about $200 billion in tax revenue each year. This estimation assumes that some of the assets held in tax havens are properly reported by their owners to tax authorities. Once he throws into the mix the role of tax havens in U.S. multinationals’ income-shifting strategies, another $130 billion of lost revenue annually results.
The revenue lost through tax evasion and avoidance facilitated by tax havens is presumably compensated for by increased taxes on taxpayers who lack the wealth and sophistication to make use of tax havens. This in turn leads to increased inequality. Zucman draws a direct line between the success of tax havens and the steady increase in inequality. Thomas Piketty, who wrote the forward for Zucman’s book, concludes that such process is so destructive that is may eventually impair the basic social contract on which modern democracies are built: “everybody has to pay taxes on fair and transparent basis”. Tax havens impair both fairness and transparency, and for the first time we have data to support such argument.
As depressing as it may seem, Zucman’s last part of the book offers some cautious optimism. He broadly outlines a plan which combines a global registrar of financial assets, and a small gross tax on such assets. Such tax would function as a form of presumptive taxation. That is, owners may claim credit for such tax, but in order to do so they will have to identify themselves to authorities. He would supplement such regime with sanctions (including in the form of trade tariffs) on uncooperative jurisdictions.
As much as such plan seemed grandiose to me at first, I ended up being convinced that it is technically feasible. As Zucman explains, most financial assets are registered today in very few repositories, the combination of which will account for most true ownership of financial assets. Once a registrar is instituted, the gross tax levy becomes administratively doable. Even trade sanctions on non-cooperative jurisdictions are not far-fetched. For example, Zucman calculates that if Germany, France and Italy alone cooperate in imposing a tariff on Swiss goods, a 30% tariff rate would be enough to deny Switzerland of all benefits associated with being a tax-haven. 30% is the same level of penalty imposed on non-cooperative taxpayers by FATCA. If more jurisdictions joined forces, the necessary tariff might become substantially smaller.
While I am convinced that Zucman’s plan is technically feasible, I am less than certain that the political will to adopt such a plan exists. Nonetheless, advocacy is the first step in any political change, and Zucman’s book makes a compelling case. The book is an essential reading if only for the trove of data it contains, and for clearly explaining how the ascent of tax havens hurts everyone else. Zucman does all that in 200 pages of plain English, free of any condescending jargon, yet with all the rigor of academic research.
There has been a growing literature of late discussing how higher education should be funded and by whom, and Benjamin Leff and Heather Hughes make an important contribution to this conversation. One of the key questions currently being debated is whether equity-based models of higher education funding, such as income share agreements and human capital contracts, are viable and ought to be considered more seriously. It is here that Leff and Hughes interject, proposing a derivative instrument they call an “income-based repayment swap” (IBR swap) as a new equity-based method of funding legal education. The Leff-Hughes proposal is innovative and, though it poses some problems, may in fact be viable. What is more interesting, though, is the fact that they propose it at all and what this tells us about the state of the “human equity” market and its relationship to law and regulation.
Some background is in order: Since Milton Friedman and Simon Kuznets first discussed the notion in 1945, economists and others have floated the idea of the “human capital contract,” an instrument that would allow investors to provide capital to individuals in exchange for a percentage of that individual’s future earnings, in essence allowing individuals to issue a sort of equity interest in themselves. From Yale’s “tuition postponement program” of the 1970s to Portland’s “IPO Man” to athlete-tracking stocks to arrangements between baseball players and the buscones who represent them, the markets have dreamed up a number of variations on the human equity theme.
In recent years, a number of startups and organizations (including Pave, Upstart, 13th Avenue Funding, and Lumni) began to offer funding through such income share agreements. The offerings have occurred both in and outside the higher education context. However, the market for these income share agreements never really seemed to gain traction. More than one of these entities has since backtracked from offering income share agreements and shifted to traditional loans instead. The limited success of offerings of income share agreements may be due in part to competition from the government. Income-driven repayment programs offered by the government sector, which cap repayment amounts, may offer students a better proposition for higher education financing than the instruments being offered by the private sector.
But there are two other possible explanations for the sputtering of the income share agreement market. First, there are limitations in how effectively one can raise large amounts of capital from investors to fund individuals. Second, regulatory uncertainties in the treatment of income share agreements may have created frictions that have dampened the market.
The IBR swap proposed by Leff and Hughes claims to solve these latter two problems. Basically, it works as follows: the student borrows money per usual by taking out a traditional student loan. The student then enters into a contract with a financial institution (the swap counterparty) under which that counterparty agrees to make the student’s loan repayment, while the student agrees to pay the counterparty a percentage of her future income. Leff and Hughes argue that the IBR swap has a number of advantages over regular income share agreements, including curing the two limitations of income share agreements noted above: First, the swap arrangement eliminates the need to raise a large amount of capital from investors upfront, while also reducing default risks and collection costs and coordinating better with current student loan programs. Second, as a derivative, the swap eliminates many regulatory uncertainties currently surrounding income share agreements. This is because derivatives are a well-recognized category of financial instrument and have relatively determinable treatment. Of course, the IBR swap has problems too, which Leff and Hughes note, including discriminatory pricing, which may or may not be curable by regulation.
Putting these issues aside, however, the most interesting thing about the Leff-Hughes proposal is what it illuminates about the state of the equity-based human financing market. As Diane Ring and I have argued, the regulatory uncertainties for offerings of income share agreements are nontrivial, the instruments themselves are heterogeneous, and they are best regulated on a case-by-case basis, by analogizing to existing instruments that they most closely resemble. This “regulation by analogy” has costs, however, most obviously uncertain regulatory outcomes. Such regulatory uncertainties may have contributed to the decline of the income share agreement market and incentivized some promoters to redesign their products to conform more closely to traditional debt. Leff and Hughes argue that because it is a derivative, the IBR swap eliminates many of those regulatory uncertainties and will better allow equity-based human financing to thrive.
The fact that avoidance of regulatory uncertainties is one of the key motivators of the Leff-Hughes swap proposal is telling about the state of our legal regimes and their application to new economic arrangements that don’t fit well into current categories. Human equity, by virtue of being “not debt” and also not other familiar things, falls into a regulatory gray area that makes offering platforms, investors, and issuers nervous, and this creates an incentive to retreat into familiar boxes (such as debt). Of course, assuming one is a pragmatist, how we feel about this nervousness may depend on whether we like income share agreements and other “human equity” instruments in the first place. While the chilling effects of regulatory uncertainty may seem problematic, uncertainty is not per se a bad thing where it applies the brakes on a potentially problematic transaction. Thus, the big question with respect to regulatory uncertainty and Leff and Hughes’ method of circumventing it may really be a question of one’s priors. If we dislike the idea of income share agreements or human capital contracts, then we are likely to be somewhat comfortable with the chilling effects of regulatory uncertainty and may dislike the IBR swap as a way of getting around it. This is the more fundamental question that needs to be asked.
Much of tax scholarship—past and present—focuses on the “what” of taxation: the substantive content of the tax laws, and what that content is or ought to be. As Leigh Osofsky recently observed in a delightful series of posts on PrawfsBlawg (see here, here, here, here, and here), a growing trend in tax scholarship considers tax administration, which one might describe as the “how” of taxation, or at least part of it. A separate, but related, strain of tax scholarship concerns the “how” of taxation from a different perspective, that of the tax legislative process. Two recent articles published last year offer interesting insights into this aspect of taxation: Michael Doran’s Tax Legislation in the Contemporary U.S. Congress, and Rebecca Kysar’s The ‘Shell Bill’ Game: Avoidance and the Origination Clause.
Doran styles his article as an update of our understanding of the tax legislative process. He describes the old process as a tug-of-war between “tax instrumentalism,” with Congress “us[ing] the Internal Revenue Code to pursue nontax economic and social objectives” and cluttering up the Code with “particularistic provisions setting out narrow rules and exceptions for specific constituents and interest groups,” and “tax reform,” with Congress repealing those instrumentalist provisions. Doran posits that, since the late 1980s, gridlock has become the norm. (Pp. 555-556.) At the same time, he suggests that “major items of tax legislation” adopted during that period are “strikingly ‘clean’—that is, nonparticularistic.” To support this proposition, Doran looks at 25 years of “major tax legislation,” listed in a handy table. He documents a decline in the length of tax legislation and draws from that admittedly “very rough proxy”—in addition to his own impressions—that contemporary tax legislation is simply less particularistic than in the past.
Doran also documents past explorations of the tax legislative process as divided between “traditional policy” accounts that “explain tax legislation almost exclusively in policy terms” and “legislator-motivation” accounts that “explain tax legislation in terms of legislator motivations.” (P. 559.) He argues that neither of these descriptions adequately accounts for contemporary trends of congressional gridlock and cleaner, less particularistic tax legislation. Doran endeavors to develop a more nuanced account that appreciates
- the role of exogenous events (overweighted by traditional policy accounts but underweighted by legislator motivation accounts);
- the multiplicity of legislator motivations (including re-election, institutional power and prestige, and good policy, but generally rejecting personal enrichment);
- legislative organization (defined as “the institutional structures by which individual legislators collectively determine the processes for their policymaking activity);
- and also takes into account
- the influence of polarization between Republicans and Democrats;
- strong cohesion within those groups;
- the re-establishment of centralized chamber management, particularly as managerial control in the House of Representatives has shifted from committee chairs to the Speaker of the House; and
- the relaxation of the congressional budget process via the expiration of PAYGO rules and greater use of the Congressional Budget Act’s reconciliation mechanism.
Doran does not seem to give any one of the elements he discusses greater rank or weight as a contributor, leading one to conclude instead that contemporary trends in tax legislation defy easy labels or explanations. Doran also acknowledges that his account offers neither a positive nor a normative theory of the tax legislative process. Regardless, Doran’s article is nicely rich as a description of the context and environment of contemporary tax legislation.
Kysar’s article approaches the tax legislative process from an entirely different angle—that of the Constitution’s Origination Clause. The Origination Clause requires legislation that raises government revenue to originate in the House of Representatives. The Clause gives the Senate the power to amend such legislation, however, and the Senate has interpreted that power broadly as allowing it to strike the language of the House bill entirely and replace that language with the Senate’s own, completely different revenue bill. Hence “the ‘shell bill’ game” of Kysar’s title. The Affordable Care Act was adopted this way, and Kysar’s paper is at least partly a defense of that legislation against claims that the ACA violates the Origination Clause. But as Kysar notes, Congress used the same technique in adopting the American Taxpayer Relief Act of 2012, the Emergency Economic Stabilization Act of 2008, and “even” the Tax Reform Act of 1986. Hence, her defense of the ACA’s constitutionality extends beyond that legislation. (As an interesting side note, the table of major tax legislation in Michael Doran’s article includes the American Taxpayer Relief Act and the Tax Reform Act, but not the Affordable Care Act or the Emergency Economic Stabilization Act. An explanatory footnote distinguishes “major tax legislation” from legislation with a large number of tax provisions but nontax central policy objectives. One wonders whether including the latter would alter the picture Doran presents.)
According to Kysar, although the Supreme Court has claimed a judicial role in policing congressional compliance with the Origination Clause, the Court’s jurisprudence also demonstrates real reluctance to intrude upon the legislative process. The Court has rejected a searching inquiry into the purposes of legislation—concluding that any legislation that funds the general treasury falls within the Clause, and declining to distinguish between regulatory and revenue-raising taxes or to impose a germaneness requirement on the Senate’s amendment power. The Court’s jurisprudence has thus opened the door for the Senate’s expansive reading of its amendment power. Kysar goes on to defend this “legislative process avoidance doctrine”—“that courts should construe ambiguous constitutional provisions in a manner that avoids searching review of the legislative process”(P. 698.)—as a matter of constitutional theory, focusing particularly on separation of powers principles as embodied in the Rulemaking Clause and the political question doctrine.
One does not have to be a process-and-procedure guru to appreciate that how Congress makes the tax laws substantially affects their substance. Although Doran and Kysar approach the tax legislative process from different directions, their articles both offer tremendous insights into the “how” aspect of taxation. Hopefully, their efforts will inspire others to follow suit.
Cite as: Kristin Hickman, Exploring the “How” of Tax Legislation
, JOTWELL (November 16, 2015) (reviewing Michael Doran, Tax Legislation in the Contemporary U.S. Congress
, 67 Tax L. Rev
. 555 (2014), available at SSRN and Rebecca M. Kysar, The ‘Shell Bill’ Game: Avoidance and the Origination Clause
, 91 Wash. U. L. Rev
659 (2014)), https://tax.jotwell.com/?p=1916
Jason Oh, Will Tax Reform Be Stable?, UCLA School of Law, Working Paper Series Law & Econ. Paper
No. 15-16 (2015), available at SSRN
Fairness, efficiency, simplicity, and revenue-raising capability (not necessarily in that order) have long been the hallmarks of good tax policy. In a forthcoming article, Will Tax Reform Be Stable?, Jason Oh introduces a new criterion: stability. Oh persuasively argues that certain tax reform may be more or less stable than others, and contends that it is possible to analyze and predict stability. Moreover, as Oh explains, understanding stability is essential in order to determine the durability of any good (or bad) tax reform.
This article is impressive because of both its potential importance and its ambition. Oh is right, of course, that, all else equal, a reform that quickly unravels is unlikely to be as impactful as one that does not. In this regard, the article’s insights are akin in importance to the realization that taxpayers will change their behavior in response to legislation (for instance, by decreasing their sales of capital assets if the capital gains tax goes up), a realization that led to the practice of dynamic scoring of legislation. In pushing us to recognize a new dimension for evaluating tax policy, Oh has to color outside the familiar lines of existing debates. His willingness and ability to do so merits attention, and may well garner it in policymaking circles.
The article begins by carefully employing political science methodology in order to predict how liberal or conservative various tax policy positions are, and when legislative action is possible, based on the relationship between such policies and the preference of legislative pivots. The article then explores how such insights are crucial for analyzing the stability of tax reform. While a given reform package may bundle together various individual pieces of reform (such as a rate reduction for corporate taxes, a rate reduction for individual income taxes, and a rate increase for capital gains), in the future such pieces of reform will not necessarily be viewed together. Once unbundled, Oh argues that each piece of reform is going to be more or less stable, based on how extreme such a policy is, relative to the preferences of legislative pivots. Moreover, the article argues that certain tax reforms predictably will be more extreme than others and that, as a result, it is possible to predict, at the time a tax reform package is put together, which pieces are most likely to unravel.
The normative implications of this analysis are important. First, it suggests that policymakers should not assume that the pieces of tax reform packages will inextricably stay tied together. Rather, pieces of reform which, when viewed individually, are extreme, should be viewed as less stable pieces of reform. Indeed, although Oh focuses on extremity relative to legislative pivots, individual pieces of a reform may be unstable for reasons other than the extreme nature of a given reform piece relative to legislative pivots. In any event, Oh’s analysis underscores how the purported efficiency, simplicity, and revenue-raising justifications for an unstable reform should be discounted by the instability of the reform itself.
Recognizing the stability dimension also can help legislators craft more stable reform packages, or at least recognize the likely transience of unstable reform packages. For instance, Oh suggests that limiting the value of a variety of popular tax expenditures is likely to be more stable than an outright repeal of a popular tax expenditure, such as the mortgage interest deduction. The analysis also offers general lessons for how to make reform more stable. For instance, Oh explains that bridging compromises (which move existing policies on both sides more toward the legislative center) are likely to be more stable than polarizing compromises (which provide each side with extreme gains). Oh also explores how mechanisms that one might think would be stability-enhancing, such as supermajority requirements, likely increase stability less than one would expect.
To be sure, this article raises many questions. For instance, the article explains that extreme policies get enacted to begin with by explaining that such extreme policies, when coupled with other reforms, are more likely to get enacted. The question, then, is how to predict what reforms will stick when they will inevitably be coupled with unknowable, future, possible reforms, and political and economic conditions. Moreover, one wonders whether the very assessment of certain policies as more or less stable is more likely to make them so. This latter point is not so much a concern about the stability analysis itself, but rather a concern about how such analysis may be used, or even manipulated in the future, just as dynamic scoring is vulnerable to manipulation. In any event, Oh is careful to acknowledge that stability analysis is not going to be precise or uncontroversial. Rather, he persuasively argues that stability should be part of the conversation.
Leigh Osofsky, The Case for Categorical Nonenforcement
, 69 Tax L. Rev.
(forthcoming, 2015), available at SSRN
We tax academics in law schools have an affinity for the logical operation of rules. We could not remain immersed in the intricacies of the income tax—and therefore remain competent as scholars and teachers—if we did not. Considerable resources have been devoted to the elaboration of rules developed through the logical application of a few basic principles. These principles, including those associated with the Haig-Simons definition of income and those governing accounting for capital, allow us to view this body of law as determinative, and thus capable of uniform application. In other words, the income tax system has long used this logic as the basis of its claim to rule-of-law legitimacy. The resulting set of rules is elaborate, indeed, it often seems as if it is among the most elaborate sets of rules ever devised.
But as specialists engaged in this elaboration, we must also understand that a legitimate tax system cannot be maintained merely by the articulation of these rules. The rules themselves will never be self-enforcing. And the mere elaboration of additional rules will never close the gap between the revenue that would be collected under a perfect application of the rules and the revenue that will actually be collected.
Leigh Osofsky’s article, The Case for Categorical Nonenforcement, soon to appear in the Tax Law Review, provides an opportunity to explore this tension between the formal elaboration of the tax law and the capacity of the Internal Revenue Service to enforce it. The tension is easily seen throughout the actual operation of the income tax law, whether one looks at the actual treatment of large partnerships, frequent flyer miles, fringe benefits claimed by non-employees, or many other provisions.
At bottom, Osofsky argues that the IRS can and should admit that it cannot always do what it has been asked to do. Stated in this way, the proposition is incontrovertible. The administration of the tax law requires far more than the mere articulation of rules. It requires communication of these rules not only to the taxpayers to whom they will apply, but also to the bureaucrats who must ensure that the rules are consistently applied. Given that every revenue officer cannot know every relevant tax rule, much less every relevant fact relating to a taxpayer’s liability under those rules, tax administration must inevitably fall short.
How then can the income tax, as actually enforced by the IRS, retain its claim to legitimacy? Borrowing from the literature on administrative processes more generally, Osofsky offers three routes to legitimacy: steps that enhance political accountability, steps that promote civic deliberation and popular engagement, and steps that reduce the arbitrariness of the ultimate outcomes. Her primary claim is that categorical nonenforcement—by which she means public declarations that the tax consequences of some aspects of taxpayer behavior will simply not be explored—will enhance the legitimacy of the IRS rather than detract from it.
This conclusion has to be correct. Surely it is better that Congress and the public know where the weak spots in tax enforcement are. Osofsky’s contribution does not provide definitive answers to when and how these confessions should be made. But it should help us all in developing more realistic approaches to tax administration.