Lisa Philipps, Registered Savings Plans and the Making of Middle Class Canada: Toward a Performative Theory of Tax Policy
, 84 Fordham L. Rev.
(forthcoming 2016), available at SSRN
Analyses of tax policy are typically based on a familiar cost-benefit framework. There are important debates about which costs and benefits should be included (and which are measurable), but the standard formula is simple: (1) Describe the policy goal; (2) Present the costs and benefits of a policy that is meant to achieve that goal; and (3) Conclude that the policy is good or bad, depending on whether benefits exceed costs or vice versa.
In her important new article, Professor Lisa Philipps uses a Canadian tax policy debate to show that this approach is fundamentally misleading. Standard cost-benefit analysis—even if it is focused on inequality or other social outcomes— ignores the effect that adopting policies has on, as Philipps puts it, “the range of policy options considered thinkable.” (P. 102.) Tax policies can become embedded in the social system in a way that cannot be explained by standard cost-benefit analysis, and the resulting changes in social expectations can lead to self-defeating policy inertia.
Philipps’s article, which is part of a symposium in the Fordham Law Review entitled “We Are What We Tax,” adapts Judith Butler’s important work in feminist theory to analyze a seemingly technocratic question about tax incentives for saving. To some readers, this might seem a jarring combination, but the intersection of feminist theory and tax policy has become a growing and vibrant area of scholarly inquiry over the past few decades. This line of research is providing important theoretical and practical insights into tax policy debates that helpfully move the conversation past the usual neoliberal framework.
As noted, Philipps focuses on the social impact of tax incentives for saving in Canada. Philipps looks at changes in Canada’s tax policies over recent decades, showing how the government has increasingly relied on the tax system to encourage people to save for their retirements, through what are called “registered savings plans.” This approach is, however, only one possible response to the broader policy question, which is how a society can allow people to spend the latter years of their lives living a dignified retirement rather than either working themselves to death or being reduced to poverty when they can no longer work.
Another possible answer to that question is known in the United States as the Social Security system. Although that system is often understood as a system in which people pay taxes while working and then “get their money back” when they retire, Social Security is in fact financed on a pay-as-you-go basis, and there are no “accounts” into which payroll taxes are deposited. Although it is beyond the scope of this essay to discuss the issue in detail here, the fact is that pay-as-you-go systems and systems of personal deposit accounts are analytically identical in the aggregate. In one way or another, workers at any given time are reducing their consumption in order to allow former workers to stay alive, and in turn those current workers will be allowed to live without working at some point in the future. The means by which that system is financed cannot change that fundamental tradeoff.
Being analytically equivalent, however, does not mean that the two systems are socially or politically interchangeable. As Philipps points out, Canada made the choice to have its workers build nest eggs for their retirement years, and Parliament has experimented with various methods by which to use tax incentives to encourage people to save sufficient funds to live in some comfort during retirement. In that sense, much of the political discussion followed the standard pattern: (1) We need to get people to save more money, (2) The policies that we are adopting have succeeded in various ways and failed in various ways, and therefore (3) The policies need to be tweaked, enhanced, abandoned, and so on.
The Canadian policy of relying on private decisions to save was justified by the neoliberal gloss of “promoting individual self-reliance and familial responsibility to address human welfare needs” (P. 109). Even when supplemented by various tax incentives, however, the Canadian system has had a (completely predictable) negative distributional impact. Philipps’s insight, however, is not merely that private savings accounts have exacerbated inequality. She argues that the policy conversation is not merely a matter of saying, “Well, our current set of policies is not serving Canadians well in their retirement, so let’s put all possible ideas on the table to see what would work better.” Instead, the justifications for the private-saving approach to retirement became self-reinforcing, such that even the Canadians who are harmed by the system are now psychologically committed to its perpetuation.
How could that be? The idea behind the Canadian retirement system was not just a matter of telling middle class people that they had a personal responsibility to save for their retirement, but also of making retirement saving part of the very essence of middle class identity. Philipps writes: “To be an adult without a registered savings plan now threatens to place one on the margins of the social order” (P. 121). In other words, anyone who wishes to think of herself as a middle-class Canadian now automatically thinks that part of middle-class life will involve building retirement savings through registered plans.
This constructed social identity, however, has a surprisingly important impact on the policy debate. Because people aspire to be part of the middle class, and middle class identity includes being a rugged individual who saves for oneself and one’s kin, middle class Canadians (and those who hope to achieve that status) are now highly unlikely to approve of any plan to move away from a savings-based system to a macroeconomically equivalent pay-as-you-go system that looks like a Social Security plan. That is, people have learned that “being middle class” means sinking or swimming on one’s own, and because of that deeply embedded social expectation, any move to more explicitly acknowledge through policy that everyone is mutually dependent now somehow feels wrong.
This phenomenon is hardly limited to retirement savings. For example, basic financial principles make clear that the difference between owning and renting one’s residence is ultimately a matter of form and not substance, because the legal category of property ownership can be replicated through contractual agreements. Nonetheless, in the U.S. and Canada part of “the dream” is to be a homeowner. It does not seem to matter that the particulars of home ownership can be devastating for people when their houses lose value (as in the housing bust of 2008-10), or that good financial management should discourage putting all of one’s proverbial eggs in a single basket, because such cost-benefit considerations end up being overwhelmed by people’s psychological commitment to home ownership. A politician who suggests that home ownership is not a meaningful or appropriate goal will discover quickly that citizens strongly disagree.
And so it is now in Canada with respect to individually oriented retirement savings. As Philipps concludes: “Registered savings plans will endure not because they actually deliver the benefits they promise to most people but rather because they have been assimilated into Canadian middle-class identity” (P. 122). What would be viewed as a flawed and counterproductive policy that harms middle-class Canadians thus stumbles onward, because people have been taught to believe that there is a “right” middle-class way to save for retirement. The existing policy regime becomes its own justification.
In his book Capital in the Twenty-First Century, Thomas Piketty did us the great service of bringing the problems of wealth and income inequality to the fore. In the process, however, he also may have performed a bit of a disservice – making those problems seem simple, a mere function of the inequality r > g, where r is the rate of return to capital and g is the rate of economic growth. The solution, he suggested, was equally simple: a tax on wealth.
Bariş Kaymak and Markus Poschke, in The Evolution of Wealth Inequality over Half a Century: The Role of Taxes, Transfers and Technology, offer a more complex picture. They construct a general equilibrium model of the U.S. economy over the past half-century, incorporating (1) reduced income taxes on top earners (from a 45% effective rate for the top 1% in 1960 to a 33% effective rate in 2004, and from a 71% effective rate for the top 0.1% in 1960 to a 34% effective rate in 2004), (2) expansion of government transfers from 4.1% to 11.9% of GDP over the same period, and (3) higher pre-tax wage inequalities, which they attribute to technological change. (For these purposes, effective rate is defined as income taxes paid as a percentage of taxable income.) The question they ask and attempt to answer is: To what extent were the observed increases in wealth and income inequality over that period attributable to each of these changes or trends?
Income: Their answer with respect to income inequality is unequivocal: After taking into account standard general equilibrium adjustments, cuts in top rates had almost no effect on after-tax income distribution. Instead, the authors find that during the period studied, after-tax income inequality increased almost entirely because pre-tax income inequality increased.
Wealth: Their answer with respect to wealth inequality might strike some as counterintuitive. They find that an increasingly robust safety net (principally Social Security and Medicare) appears to have reduced incentives to save for the bottom 90%, resulting in increased wealth concentration at the top. Taken together, changes in U.S. tax and transfer systems explained nearly half of the observed rise in wealth concentration over the past half-century; the remainder was explained by increases in pre-tax income inequality.
Interactions: In addition, the two inequalities interacted in complex ways, intermediated by interest rates and prices:
Accumulation of additional wealth in response to tax cuts leads to a decline in the interest rate and an increase in the wage rate. The fall in the equilibrium interest rate discourages savings by lower wealth groups and exacerbates the direct effect of tax cuts on wealth inequality. As for income, the lower interest rate mitigates the rise in top incomes, while a higher wage rate benefits lower income groups as they live mainly off labor income.
By email to this reviewer, Prof. Kaymak explains the relationship between wealth inequality and wage rate increases as follows:
[T]he link from capital accumulation to the wage rate is an equilibrium effect …. As new wealth is channeled to production through investment, it generates a demand for additional labor since labor and capital are complements in production. Higher demand for labor then raises both employment (job creation effect) and wages. Of course, tax cuts could also change the labor supply behavior …. But we find this [latter effect] to be much weaker ….
Bottom line: greater inequality in wealth reduced income inequality by reducing the return to capital and increasing wages.
Finally, because general equilibrium adjustments take time, the authors predict that two or three more decades of increasing wealth concentration will result from policy and economic changes that have already occurred, at which point the top 1% will own about half of all U.S. wealth, up ten percentage points from their current share.
What should we make of all this?
First, general equilibrium analysis, although absolutely essential, is notoriously difficult and sensitive to assumptions. The authors note that their conclusions are inconsistent with those reached by some (Atkinson (2011) and Mertens (2013)), but consistent with those reached by others (Saez (2012)). Nonpartisans may want to take all such conclusions with at least a small grain of salt.
The authors might have distinguished between taxes on income from labor and taxes on income from capital, although these are difficult to tease apart. A priori, at least, we would expect different kinds of taxes to have different effects on savings and interest rates. Optimal tax theory, for example, conventionally assumes that taxes on income from capital depress savings, but that taxes on income from labor do not.
One wonders also whether some aspects of the U.S. tax system might have offset the results the authors describe through depressed demand for lower-wage labor. Accelerated and bonus depreciation may have encouraged the automation of less skilled jobs, for instance, and/or a largely territorial multi-national corporate tax system may have encouraged the offshoring of those same jobs as tariffs and other trade barriers were lifted.
With respect to the effect of offshoring, Prof. Kaymak observes, again by email:
For wages to rise through the equilibrium effect…, investment has to stay at home. We had run some simulations allowing for capital flight in early versions of our paper. What that does essentially is to mute the effect of top tax cuts on wealth inequality (interest rate does not fall in this case, so the bottom wealth groups do not curb savings as much). Income inequality in turn increases somewhat, because part of additional investment goes abroad, hence no wage gains for labor.
In other words, capital flight reduces wealth inequality but increases income inequality.
In any event, the paper makes an important contribution; its thoughtful analysis should persuade the reader that problems of wealth and income inequality are more complex than Piketty claims. Increases in the safety net that reduce disparities in consumption may exacerbate disparities in wealth. Ed Kleinbard, in his book We Are Better Than This, has urged that we worry less about progressivity in taxation and more about progressivity in spending. Doing so, the current paper suggests, may actually result in further concentrations of wealth in the already wealthy.
This, in turn, raises fundamental normative questions: Do we really care about disparities in wealth? Why? Do we care more about disparities in income? Or is our ostensible concern about inequality really a concern about poverty? If Kaymak and Poschke are even partly right, it may not be enough to say: “Equality good. Inequality bad.” We may actually have to do some hard normative work.
The age of inequality has prompted an age of writing about inequality. Now writing about inequality has started to come of age. An important example is Branko Milanovic’s new book, Global Inequality: A New Approach for the Age of Globalization.
Milanovic, an economist and Senior Scholar at CUNY’s Luxembourg Income Study Center who has been studying global data regarding economic inequality for more than twenty years, discusses three main topics in this book: inequality within a given country, that between or among countries, and what might be the path of global inequality in the future. While the book’s contributions on all three topics contain numerous points of interest, the first has especial theoretical relevance. Milanovic suggests that inequality may decrease in the coming decades in some rich countries, but probably not in the United States.
In the 1950s, economist Simon Kuznets famously posited that, as an economy develops, market forces lead first to increasing and then to declining economic inequality. However, while this was the story seemingly told by the data available to him at the time, it has subsequently been contradicted by evidence of generally rising inequality in developed countries since the 1970s. Thomas Piketty, in his noted 2013 book, Capital in the Twenty-First Century, argued that rising inequality is the norm, and that the mid-twentieth century’s “Great Easing” from which Kuznets generalized was merely a blip, created mainly by the early-to-mid-century disasters of war, revolution, the Great Depression, and then more war. Piketty attributed the dominant trend that he discerned to “r > g” – a general tendency for returns to capital to exceed overall economic growth rates, causing wealth-holders’ share of the pie to keep on growing. This view did not, however, permit him to explain why, in U.S. data, rising wage inequality, rather than returns to capital, has played the largest role.
While Kuznets’ problem, in retrospect, was his projecting from just two main types of data points – Western countries during the Industrial Revolution and then during the mid-twentieth century – Piketty, for the most part, adds just one more: the same societies over the last several decades. Milanovic, by contrast, draws on data and studies from many more countries and over a far longer period. (He even has inequality estimates for the Roman Empire and its successor states, over the period from 14 to 700 A.D.) All this information permits him to develop a broader understanding of the multiple forces that historically have pushed towards either rising or falling inequality.
Against this background, Milanovic posits what he calls Kuznets cycles or waves – successive periods of rising, and then falling, inequality in a given country. He argues that these may tend (all else equal) to track periods in which the annual growth rate of the economy first rises and then falls, as new technological revolutions emerge and are then assimilated. However, he recognizes that one cannot overgeneralize, given that “[t]he future often likes to throw curve balls” (P. 117). In particular, various factors that are at least partly exogenous to technical change as such – pertaining, for example, to trends in a country’s politics, infrastructure, and educational system – may also affect inequality trends.
This could suggest a somewhat different view of Kuznets waves as being, in effect, an ex post observation that merely reflects how things happened to play out. By analogy, if you keep on tossing coins, you will periodically get several heads in a row at some points in the sequence, and tails at other points, leading to an observation of successive heads-dominated and tails-dominated cycles or waves.
Looking forward, Milanovic sees several ways in which “benign forces [i.e., not just disasters like those of the mid-twentieth century] could hypothetically push rich countries onto the downward portion of the second Kutznets wave” (P. 113). These include rising education, dissipation of the economic rents that have recently created so many high-tech mega-fortunes, income convergence between countries (especially if Asia’s recent rise extends to other continents), and a shift from high-skill-biased to low-skill-biased technological change (although it is not clear why this should be expected to happen).
For the United States, however, Milanovic sees the possibility for a “perfect storm” of rising inequality (P. 180), partly for internal political reasons. “Concentration of income will reinforce the political power of the rich and make pro-poor policy changes in taxation, funding for public education, and infrastructure spending even less likely than before.” (P. 181.) If he is right about this, as well as in his more optimistic forecast for other rich countries, then American exceptionalism may continually increase over the next few decades, but not in a good way.
Diane Lourdes Dick, U.S. Tax Imperialism in Puerto Rico
, 65 Am. U. L. Rev.
(forthcoming 2016), available at SSRN
Puerto Rico faces a host of public finance woes. It owes over $70 billion in public sector debt. On May 2, 2016, it missed a major debt payment to its Government Development Bank bondholders. Congress is currently considering legislation that will allow Puerto Rico to restructure its debts. Without debt restructuring, further defaults seem inevitable. Puerto Rico has attempted to use its tax laws to ease its public finance problems. However, in March, the United States District Court for the District of Puerto Rico ruled in Wal-Mart Puerto Rico v. Zaragoza-Gomez that an increased tax imposed by Puerto Rico on certain cross-border, related-party property transactions violated the U.S. Constitution and the Federal Relations Act. The court acknowledged that the tax was implemented to quickly raise revenue to ameliorate Puerto Rico’s fiscal challenges, but it struck down the tax nonetheless. As of this writing, Puerto Rico’s fiscal future remains uncertain.
Puerto Rico’s economic and fiscal condition and its tax policy are, of course, related, and the United States has played an important role in both. But what exactly is the United States’ economic relationship with Puerto Rico? What do U.S. tax and fiscal policies with respect to Puerto Rico tell us about that relationship? And how have these policies influenced the economic trajectory of the island? Tax aficionados may be broadly familiar with tax incentives for investment in Puerto Rico, but what deeper story lies beneath?
Diane Lourdes Dick takes up these questions in her article entitled U.S. Tax Imperialism in Puerto Rico. The article develops a theory of U.S. tax imperialism, which I understand to be a subset of economic imperialism, by detailing the ways in which U.S. tax policy has been used to control the economic trajectory of the territory for the benefit of the mainland.
Professor Dick describes three historical stages of such tax imperialism:
In the first stage, beginning after the Spanish-American War of 1898 and continuing through 1919, the United States revamped Puerto Rico’s tax laws, which had developed under Spanish rule. In essence, U.S. interventions during this period decreased reliance on indirect taxes (for example, by replacing older consumption-type excise taxes with more narrowly defined excises) and increased Puerto Rico’s reliance on direct taxes on personal and corporate income. An existing tax on income from property was also replaced with one based on property valuations. Professor Dick discusses the impact of this property tax in pressuring Puerto Rican landowners to either sell or productively utilize their property; the effects of the tax on land ownership; and the tax’s role in the formation of a single-crop sugar economy, which benefitted large U.S. sugar corporations.
In the second stage, spanning 1920 through 1974, Professor Dick characterizes the United States as pursuing tax and economic policies designed to utilize Puerto Rico as a low-cost provider of manufacturing inputs for U.S. corporations, thereby reducing dependence on foreign sources for these inputs. For example, a federal tax exemption for the foreign-source income of certain U.S. corporations that derived income from U.S. possessions was enacted. This exemption was converted into the Section 936 possessions tax credit by the Tax Reform Act of 1976. When paired with changes in Puerto Rico’s tax laws exempting U.S. corporations from Puerto Rico’s income, property, and other taxes, this exemption effectively provided U.S. companies with a blanket tax holiday in Puerto Rico.
In the third stage, from 1975 to the present, by contrast, concerns about capital flight from the United States mainland to Puerto Rico and other locations led to a shift in U.S. tax policies, with a new emphasis on incentivizing capital to flow out of Puerto Rico and back to the U.S. mainland. Professor Dick notes that the U.S. now allowed U.S. parent corporations to claim a full dividend-received deduction for income earned in U.S possessions. However, Puerto Rico’s counter-move—extension of Puerto Rico’s withholding tax to repatriated dividends—worked to offset the incentive to repatriate earnings to the U.S. mainland. U.S. legislators eventually responded by repealing the Section 936 possessions tax credit in 1996 (subject to a ten-year phaseout), with complete elimination for tax years beginning after December 31, 2005. But the repeal led many corporations operating in Puerto Rico to convert their subsidiaries to controlled foreign corporations, effectively keeping capital offshore and preventing the U.S. Treasury from taxing it, thus thwarting the U.S. goal of encouraging repatriation of earnings back to the United States.
In setting out a three-stage theory of tax imperialism and by situating U.S. tax and fiscal policy against the broader backdrop of U.S. economic policy in Puerto Rico, U.S. Tax Imperialism in Puerto Rico challenges the dominant narrative surrounding U.S.-Puerto Rico economic relations and Puerto Rico’s current fiscal condition. This narrative tends to portray the U.S. as a benevolent patron and to blame Puerto Rico for its continuing fiscal difficulties. Professor Dick’s article illuminates the tax and economic imperialism underlying the evolution of U.S. tax policy with respect to Puerto Rico, presenting a wide-ranging analytical history of the economic relationship between the U.S. and its territory and discussing how U.S. tax policies have contributed to Puerto Rico’s current fiscal problems. As I read it, the main takeaway is not so much that any one policy is necessarily bad in and of itself, but that as a matter of motivation, the U.S. has been using Puerto Rico for its economic advantage for over a hundred years and has designed Puerto Rico’s tax policies to U.S. ends.
U.S. Tax Imperialism in Puerto Rico is a careful, interesting, and timely account of how the U.S. has designed tax policies with respect to Puerto Rico since 1898, but its contribution does not end there. The article also raises broader questions. For example, one wonders whether similar dynamics have been in play with respect to the other U.S. territories. Another important question concerns Puerto Rico’s relatively unnoticed place in the history of capital flight from the United States. According to Professor Dick’s account, capital flew from the U.S. to Puerto Rico as a result of tax incentives. But then it fled further and more permanently abroad due to the increasing use of controlled foreign corporations by U.S. corporations. The growth in controlled foreign corporations occurred in response to the repeal of the possessions tax credit and the broader shift in U.S. tax policy in Puerto Rico after 1975. This account potentially muddies the usual story about capital lockout and capital flight: it suggests that contrary to the usual narrative, offshoring of U.S. capital cannot be entirely attributed to direct comparisons between the U.S. and other sovereign competitors. Rather, at least some capital may have moved from the U.S. to U.S. possessions such as Puerto Rico, and then to more distant shores as a result of U.S. tax policy with respect to the possessions. This is a topic that merits further investigation.
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.