Category Archives: Tax Law
Jun 5, 2026 Susan MorseTax Law
Does the Seventh Amendment provide a taxpayer with the right to a jury before the government imposes tax penalties? This issue is live at the Tax Court, at Courts of Appeals, and at the Supreme Court. Fortunately, the tax literature includes two entries on this topic, one by Professor Steve Johnson and another by Professor Bryan Camp. Both are somewhat skeptical about a jury trial requirement, thought they emphasize different aspects of the question. Their work should illuminate the conversation, and inform the litigation.
Few thought tax penalties attracted jury rights prior to the 2024 Supreme Court decision in Jarkesy v. Securities and Exchange Commission. But after the Court decided that jury rights attached to securities fraud penalties, an analogous question arose in tax. A cert petition is pending in Hirsch v. U.S. Tax Court, where the Eleventh Circuit refused petitioner’s request for a writ of mandamus on the grounds that the Tax Court had unconstitutionally denied them a jury trial. Tax practitioners are following Hirsch closely. Continue reading "Jury Rights in Civil Tax Cases??"
Apr 14, 2026 Diane RingTax Law
In Client-Attorney Privilege: The Last Barrier to Tax Transparency, Siddesh Rao explores the tension between ongoing global efforts at tax transparency and disclosure and legal systems’ commitment to client-attorney privilege. In a world in which information vital to effective tax enforcement is frequently hidden from view, who should be compelled to provide that information and on what terms? The answers to these questions have large stakes. On the tax revenue side, the failure to enforce the tax laws meaningfully, especially against large and sophisticated taxpayers, may diminish both the fisc and public confidence in the tax system. Conversely, making information and transparency demands on legal advisors puts at risk fundamental principles in legal systems premised on a special relationship between attorneys and their clients. The balance between these two priorities faces increasing pressure as states have devoted more attention to transparency and disclosure while at the same time taxpayers have, according to various observers, strategically misused claims of privilege to shield their transactions, structures and assets from tax authorities.
To evaluate this tension and offer recommendations, Rao adopts a comparative perspective, considering applications across common law and civil law jurisdictions, exploring common contexts for privilege “abuse,” and detailing the effects of transparency-forcing regimes such as mandatory disclosure and anti-money laundering rules. Although we may often think about client-attorney privilege as an internal, domestic legal issue, the rise of this tension is indeed global, as Rao documents. It is a culmination of both individual state responses to tax enforcement challenges, and a globally expressed commitment to tax transparency and disclosure in a world in which much sophisticated tax planning is cross border. Continue reading "Showdown or Balancing Act: Reconciling Our Commitments to the Tax System and the Legal System"
Mar 11, 2026 Adam ThimmeschTax Law
Since 2020, many states have been cutting their income tax rates and narrowing their bases, while others have been considering wealth tax proposals and other progressive revenue tools. These divergent actions raise critical questions about modern fiscal federalism. When is subnational redistribution feasible? When does tax competition instead lock states into a uniform tax-cut script? And how does federal tax policy impact states’ choices?
Kirk Stark’s article, Taxation, Redistribution, and the Urban-Rural Divide, offers an interesting and useful evaluation of these questions by assessing modern fiscal federalism through a spatial lens built on insights from a variety of fields, including economic geography, U.S. history, and political science. His article recognizes that the traditional “textbook” model of fiscal federalism often dismisses subnational progressive taxation as implausible. The logic, rooted in the Tiebout model, is simple: if a state tries to “tax the rich,” the rich—or their mobile capital—will simply move. This understanding conventionally leaves the federal government to address equity and progressivity while states instead compete on service quality. Continue reading "The Asymmetric State: The Urban-Rural Divide as Architect of U.S. Tax Policy"
Feb 12, 2026 Charlene D. LukeTax Law
Edward J. McCaffery and Darryll K. Jones offer an engaging explanation for the lack of progress in closing the carried interest loophole in The Curiouser and Curiouser Case of Carried Interests. This well-known loophole—which has been analyzed extensively in the literature—allows top hedge fund and private equity managers to pay tax on service income at the lower rate afforded long-term capital gains. The article draws on earlier scholarship by each of the co-authors and provides an updated account of the decades-long lack of progress in closing the loophole.
In 2006, McCaffery and Linda Cohen published Shakedown at Gucci Gulch: The New Logic of Collective Action, 84 N.C. L. Rev. 1159 (2006). That 2006 article drew on Mancur Olson’s 1965 book, The Logic of Collective Action, which theorized the conditions required for special interest lobbyists to overcome collective action problems and wield outsized legislative influence. McCaffery and Cohen posited that Olson’s framework did not adequately explain the shenanigans surrounding estate tax repeal. Instead of legislators being the dupes of special interest groups, legislators were engaging in extortionate brinkmanship to increase campaign contributions from the special interests with the most to gain (or to lose) from estate tax legislation. As McCaffery and Jones summarize in their article, the game is “reverse” Mancur Olson because “legislators come first, special interests second.” Continue reading "Anatomy of a Shakedown: The Carried Interest Case"
Jan 22, 2026 Adam RosenzweigTax Law
Conor Clarke & Ari Glogower,
Apportioned Direct Taxes, 79
Tax L. Rev. __ (forthcoming 2026), available at
SSRN.
In June 2024 the Supreme Court issued its decision in Moore v. United States, a case many had predicted would be one of the most consequential tax cases of the past century. Instead, however, the Court managed to avoid deciding the most difficult and consequential issues by reframing the case and ruling on narrower, more technical grounds. Yet Moore may well still prove as consequential as expected, but for a different reason– that, for the first time, the Court explicitly utilized the “history and tradition” to interpret the taxing power, stating that “the Sixteenth Amendment expressly confirmed what had been the understanding of the Constitution before Pollock …” In doing so, Moore also serves as an invitation to to reconsider the historical record and understanding of the taxing power specifically with an eye towards shaping the Court’s modern interpretation of the Constitution.
Conor Clarke and Ari Glogower take up this cause in their new article, Apportioned Direct Taxes (ADT). The authors have two primary goals in ADT: (1) to provide a comprehensive survey of all “direct tax” legislation adopted by Congress prior to the Sixteenth Amendment including not only legislative history but administration and enforcement considerations as well, and (2) to identify what if any lessons emerge from that survey to help the courts to interpret the breadth and scope of the term “direct taxes” as used in the Constitution. Continue reading "Putting the Original Back into Tax Originalism"
Dec 18, 2025 Emily SatterthwaiteTax Law
Direct international aid flows directly to individuals and communities in the form of such essentials as food, water, medicine, and cash. As humanitarian crises erupt around the world, this form of assistance has become both politically contentious and more necessary than ever. Yehonatan Givati’s timely new paper, Income and Preferences for International Redistribution: Theory and Evidence, offers an enlightening framework to think about patterns of support for such aid programs. It builds on theoretical and empirical research that has established a relationship between preferences for domestic redistribution and income: poor citizens will likely support rich-to-poor redistributive policies within their own countries more than rich citizens. But what about international redistribution? How might an individual’s relative income level influence her support for internationally redistributive policies?
Givati begins by observing that the relationship between income and preferences for international redistribution is much less obvious than in the domestic context. Because lump-sum international redistribution must be financed through higher taxes, higher-income individuals have more to lose from international redistribution. This implies a negative relationship between income and support for international redistribution. At the same time, lower-income individuals may perceive that, given fixed funding levels, international redistribution will come at the expense of domestic redistribution. This implies a positive relationship between income and support for international redistribution. Continue reading "Do Rich or Poor Prefer International Redistribution More?"
Oct 30, 2025 Charlotte CraneTax Law
Reuven Avi-Yonah, Doron Norotzki, & Tamir Shana,
From Relic to Relevance, The Resurgence of Tariffs, 77
U. Cal. L. J. __ (forthcoming, 2026), available at
SSRN (Mar. 10, 2025).
There’s a lot of confusion about the justifications for and the consequences of tariffs in the news these days. The essay by Reuven Avi-Yonah, Doron Norotzki, and Tamir Shana entitled From Relic to Relevance, The Resurgence of Tariffs, attempts to remedy the situation. Its bottom-line conclusion is that it is extremely difficult to imagine a tariff system sufficiently robust to raise revenue adequate to replace the income tax even if revenue were the only concern. Moreover, it is virtually impossible to implement such a tariff without the real possibility of wreaking havoc on both domestic and international economies. The authors of Relic to Relevance (hereinafter “Relic authors”) want us all to understand why reliance on tariffs, especially as a replacement for the income tax, could be so dangerous.
As the Relic authors outline, introducing major changes in tax instruments is tricky business. In peace time, the United States Congress has rarely made such moves. The first time was the expected result of the adoption of the Constitution; expected because the need for a revenue source controlled by Congress and for uniform trade policy had been primary motivations for adopting a constitution to replace the Articles of Confederation. In its first substantive piece of legislation, Congress enacted the Act for Laying a Duty on Goods. This Act became law on the first Fourth of July celebrated under the new Constitution in 1789 (1 Stat. 24). Continue reading "Relics Reevaluated: How to think about Tariffs in a World Dominated by the Income Tax"
Sep 30, 2025 Susan MorseTax Law
Marilyn Hajj,
Waiter, Extra Tip, No Tax: A Distributional Analysis, 33
Geo. J. on Poverty L. and Pol’y __ (forthcoming, 2026), available at
SSRN (Feb. 1, 2025).
In Waiter, Extra Tip, No Tax: A Distributional Analysis, Marilyn Hajj offers a poverty law take on a classic and timely tax question: the taxation of tips. Her refreshing article avoids tax law’s knee-jerk opposition to a tax break for tips by offering an analysis that advocates for redistribution to low-income tipped workers. Although she does not give the tip tax breaks in the recently enacted One Big Beautiful Bill Act glowing marks, she explains that the new law would be preferable to the earlier status quo if it were better targeted and more accessible to low-income workers.
Hajj begins with the story of tipping, which traces to the “vails” expected by household staff at English homes in the 1700s. American tipping “seems to have originated in the traveling aristocracy.” After the Civil War, it developed into a custom of class and race bias. Hajj writes that Black workers in service jobs, for instance at restaurants or as railroad porters, received lower wages, and that employers used tips to justify this. The hospitality industry successfully defeated anti-tipping statute statutes; initially obtained an exemption from the federal minimum wage; and continues to take advantage of a “tip credit” rule that results, in some states, in an hourly minimum wage of $2.13 for tipped workers. Of tipped workers, 37% do not make enough to owe any income tax and 11.3% experience poverty, which is more than double the rate for non-tipped workers. Continue reading "Taxing Tips Is Not Just About Tax Law"
Sep 1, 2025 Afton TitusTax Law
This article’s importance lies in its boldness to say the quiet parts out loud–-that tax systems rely on gendered assumptions and reproduce inequality. In doing so, this paper argues that the tax systems in Europe (and others globally) quietly and invisibly discriminate against women. More importantly, this fact is somehow not the focus of comprehensive study in either feminist or political economy research, although this is slowly picking up traction in tax scholarship. This paper asks frankly: Why is taxation not more commonly treated as a site for gendered power? And what do feminist research and political economy scholarship lose by its invisibility? In short, this paper is an appeal for scholars to bring their feminist and political economy insights into the study of taxation.
As such, this paper is mainly addressed to scholars of political economy and feminist public policy. However, tax scholars may find themselves susceptible to this call as well. Tax scholars may see this paper as an invitation to anchor normative tax debates in political theory and feminist institutional analysis. It may also pique their interest to answer the questions Seelkopf very pointedly asks. These are questions like: How does the tax system in your jurisdiction affect women differently? Does your country still have joint filing, and what are its effects on women? What effect do VAT exemptions have on women in your jurisdiction? Seelkopf tackles both issues directly. Drawing on economic literature, she shows that joint taxation substantially raises the marginal tax rate faced by secondary earners, who are overwhelmingly women, thereby deepening gender‐based income disparities. Turning to VAT exemptions for feminine hygiene products, she finds that empirical studies on whether these lower prices or increase corporate profits are inconclusive, although there have been lower prices for non-brand products noted. Continue reading "Invisible, But Taxed: Gender, Power, and the Tax State"
Jul 17, 2025 Neil H. BuchananTax Law
Rebecca Morrow,
The Income Tax as a Market Correction, available at
SSRN (March 28, 2025).
The fundamental problem with orthodox economic analysis of policy issues is the lack of a clear baseline. That is, standard economic arguments revolve around moving the world from its currently impure and benighted “inefficient” equilibrium back to its idyllic efficient state (known technically as Pareto efficiency). Yet, as I have discussed here, we do not and cannot know what that perfectly efficient state looks like – or even how we would know it when we achieved it. In turn, that means that we do not know whether any particular legal change or policy intervention will move us closer to or further away from the efficient state of the world. Indeed, we might already be in that supposedly ideal state, which would mean that any changes would move us into a suboptimal world.
Rebecca Morrow’s The Income Tax as a Market Correction uses the inherent unknowability about what is and is not efficient to offer a profound (and also somewhat cheeky) retort to the many economists who call the income tax inefficient. Professor Morrow is right that having an income tax could be more efficient than not having an income tax – because, again, anything is possible in a world without a known baseline – but she goes further and argues that the income tax in the United States probably is more efficient than the alternative. Continue reading "“I’m Not a Distortion, You’re a Distortion!”"
