Tax My Ride: Taxing Commuters in Our National Economy

States constitutionally impose individual income taxes on two bases: (1) Residency: a state of residence can tax its residents and domiciliaries and (2) Source: the state in which income is earned can tax the individual earner. At present, there is no articulated constitutional barrier to double taxation of individual income. That is, there is no requirement that the source state and residence state collaborate to tax no more than 100% of an individual\u27s income, and there is no requirement that only one state consider itself the source of a particular item of income. In the realm of corporate income taxation the Commerce Clause has been interpreted as requiring each state to tax only the income fairly apportioned to that state. This article argues that the commerce clause applies to check the discriminatory taxation of individual income as well. In addition, the article synthesizes the goals of the Privileges and Immunities Clause with those of the dormant Commerce Clause, and demonstrates that the Privileges and Immunities Clause does not occupy the field to the exclusion of the dormant Commerce Clause. In fact, even absent application of the dormant Commerce Clause, the article posits a separate, arguably more fundamental rationale to avoid double taxation: Both the Article IV and the 14th Amendment Privileges and Immunities Clauses share the animating constitutional principle of national unity and true national citizenship. Retaliatory and protectionist taxing regimes undermine the interest in national unity, and should fall under these clauses

Tax My Ride: Taxing Commuters in Our National Economy

States constitutionally impose individual income taxes on two bases: (1) Residency: a state of residence can tax its residents and domiciliaries and (2) Source: the state in which income is earned can tax the individual earner. At present, there is no articulated constitutional barrier to double taxation of individual income. That is, there is no requirement that the source state and residence state collaborate to tax no more than 100% of an individual\u27s income, and there is no requirement that only one state consider itself the source of a particular item of income. In the realm of corporate income taxation the Commerce Clause has been interpreted as requiring each state to tax only the income fairly apportioned to that state. This article argues that the commerce clause applies to check the discriminatory taxation of individual income as well. In addition, the article synthesizes the goals of the Privileges and Immunities Clause with those of the dormant Commerce Clause, and demonstrates that the Privileges and Immunities Clause does not occupy the field to the exclusion of the dormant Commerce Clause. In fact, even absent application of the dormant Commerce Clause, the article posits a separate, arguably more fundamental rationale to avoid double taxation: Both the Article IV and the 14th Amendment Privileges and Immunities Clauses share the animating constitutional principle of national unity and true national citizenship. Retaliatory and protectionist taxing regimes undermine the interest in national unity, and should fall under these clauses

Taxing Anxiety

In this article, I argue for a statutory change to the disparity in the taxation of damages. I submit that nearly all damages, including damages received on account of physical injury, ought to be taxable, and that juries must be apprised of tax consequences so that they can make proper adjustments to take account of these tax consequences. I will refer to this as the full inclusion proposal with jury awareness - for ease, the full inclusion proposal. My proposed change is the more sound solution for several reasons. Full inclusion creates certainty and avoids wasteful tax gamesmanship. Furthermore, assuming informed parties, counsel, and juries, full inclusion need not harm individual taxpayers. This proposal works because under it, all settlement components are taxed the same. Jury tax awareness is critical to the proposal because it permits the jury to provide the intended (after-tax) compensation, and also because only by assuming an informed jury will parties be on equal footing for settlement negotiations. And because my policy, unlike the ABA and NTA suggestions, provides no incentive to make specious claims of emotional distress, it does not risk increasing societal skepticism of mental illness. Finally, and not of least importance, the tax preference for physical injuries has a gendered component: men, more than women, recover damages from physical injury, and therefore men, more than women, benefit from the tax rule in its current form. By taxing damages for physical injury just as we tax damages for nonphysical injury, we lessen the significance of this gendered distinction. Part II of this article sets the stage by describing the evolution of section 104(a) and the taxation of damages. In Part III, the article turns to a comprehensive, to-date discussion of how courts are treating disputes about damages. Parts IV and V discuss the possible solutions: Part IV explains the NTA and the ABA position - achieving parity by expanding the exclusion; and Part V explains the full inclusion proposal - achieving parity by eliminating the exclusion - and explains why full inclusion is the better solution. Part VI concludes

The Post-Cuno Litigation Landscape

In 1996, Northeastern University School of Law Professor Peter Enrich wrote a groundbreaking article, in which he argued that certain state tax incentives are unconstitutional as violations of the Commerce Clause. This article begins by describing the constitutional landscape into which Enrich cast his argument, and them turns describe the litigation that Enrich’s article has generated, including the much-watched case, Cuno v. DaimlerChrysler Corp., which held the promise of resolving this dormant Commerce Clause question, only to wither away on the vine of standing. Following the discussion of Cuno, this article will turn to an exploration of the litigation that proceeded in two state courts: Minnesota and North Carolina. The authors conclude by offering their perspective on the trends that appear from the state court litigation

When Your Body Is Your Business

Surrogacy in the United States is a multi-million dollar industry in which well paid professionals seek out specially qualified women to fill the difficult job of being a surrogate. Surrogates enter lengthy contracts in which they agree, in intricate and intimate detail, to provide a service for significant compensation—as a group, surrogates in the United States are paid well over $22 million per year. This Article argues that surrogates are professionals in this for-profit industry and are required to report surrogacy compensation as income. As a corollary, surrogates may deduct most of their surrogacy-related expenses as business deductions. Being a surrogate is a highly personal service and the expenses the surrogate incurs—such as for maternity clothes or medical care—are typically treated as nondeductible personal expenses, but when your body is your business, the personal is business

The Post-Cuno Litigation Landscape

In 1996, Northeastern University School of Law Professor Peter Enrich wrote a groundbreaking article, in which he argued that certain state tax incentives are unconstitutional as violations of the Commerce Clause. This article begins by describing the constitutional landscape into which Enrich cast his argument, and them turns describe the litigation that Enrich’s article has generated, including the much-watched case, Cuno v. DaimlerChrysler Corp., which held the promise of resolving this dormant Commerce Clause question, only to wither away on the vine of standing. Following the discussion of Cuno, this article will turn to an exploration of the litigation that proceeded in two state courts: Minnesota and North Carolina. The authors conclude by offering their perspective on the trends that appear from the state court litigation