For Better and Worse: The Differing Income Tax Treatments of Marriage at Different Income Levels

Although both marriage penalties and marriage bonuses exist at all income levels under the federal income tax, the system is tilted toward penalties for lower-income couples, toward bonuses for middle-income couples, and back toward penalties for upper income couples. This Article begins by explaining how the tax rules produce these differing treatments of marriage at different points in the income distribution. It then argues that the increase in recent decades in the social acceptability and prevalence of cohabitation makes tax marriage effects a more serious concern--in terms of both behavioral, effects and fairness-than in earlier decades. After demonstrating that Congress has never offered any justification for the differing tax treatments of marriage at different income levels, and that no plausible defense exists for the current distribution of penalties and bonuses, the Article offers several policy recommendations. The most basic and most important recommendation is simply that, whatever Congress does in this area, it should make conscious decisions about the appropriate distributions of penalties and bonuses at various income levels, instead of following its current practice of stumbling into a set of poorly understood and almost-impossible-to-defend effects

Tax Enforcement for Gamers: High Penalties or Strict Disclosure Rules?

This essay responds to Alex Raskolnikov’s proposal to replace the current federal income tax compliance regime with a two-track approach based on taxpayer choice. The “deterrence regime” (DR) would be designed to be chosen by “gamers”, and the “compliance regime” (CR) would be designed to be chosen by all other taxpayers. Penalty rates would be significantly higher in the DR than in the CR. In this response, Lawrence Zelenak notes that the tax shelter disclosure rules of current law can also be viewed as a way of imposing a special compliance regime-featuring high odds of detection rather than high penalty rates-on gamers. Zelenak compares Raskolnikov’s proposal with the current regime, and suggests that there are plausible grounds for preferring the current regime to the proposal

Justice Holmes, Ralph Kramden, and the Civic Virtues of a Tax Return Filing Requirement

A major goal of some tax reform proponents is the elimination of the return filing requirement for many or all Americans. Although the President\u27s Advisory Panel on Federal Tax Reform heard several hours of testimony concerning the possibility of a return-free income tax system, the Report of the Panel failed even to discuss the issue. This Article contends that the Panel was right to recommend (by implication) the retention of a return-based tax system, given the Panel\u27s recommendations for major tax simplification. As long as the return filing obligation is not unduly burdensome which it would not be under the Panel\u27s simplification proposals a filing obligation has significant civic virtues. A return-based system represents an appropriate compromise on the level of visibility and painfulness of taxation, and the filing of an tax return can serve an important ceremonial function as an expression of fiscal citizenship. The civic potential of return filing is not now realized because of the tremendous complexity of the income tax, but that potential could be realized under a simplified system

Of Punitive Damages, Tax Deductions, and Tax-Aware Juries: A Response to Polsky and Markel

In “Taxing Punitive Damages,” Gregg D. Polsky and Dan Markel argue that defendants paying punitive damages are under-punished relative to juries’ intentions, because tax-unaware juries do not take into account the fact that the deductibility of punitive damages significantly reduces defendants’ after-tax costs. They note that the Obama administration has proposed addressing the under-punishment problem by amending the Internal Revenue Code to disallow deductions for punitive damages (and for settlements paid on account of punitive damage claims). They conclude, however, that the proposal would be ineffective because defendants could avoid its impact by disguising nondeductible punitive damage settlements as deductible compensatory damage settlements. They argue that a superior approach would be to leave federal tax law unchanged and to change jury instructions in punitive damage cases instead. If juries were explicitly told that punitive damages were deductible, they could “gross up” the awards to impose the desired level of after-tax punishment on defendants. In contrast with the Obama administration’s proposal, this non-tax, non-federal solution to the under-punishment problem would not be undermined by pre-trial settlements: “Gross ups, in addition to increasing jury verdicts, would increase settlement values because litigants determine these values in the shadow of what a jury would be expected to award.” Their argument is powerful and original. It may have dramatic realworld effects, if it inspires plaintiffs’ lawyers across the nation to request the jury instructions required to produce tax-aware juries, and if courts grant those requests. In this brief Response, however, I raise two possible objections to their analysis. The first objection is that they do not consider the alternative of a nondeductibility rule applicable to punitive damages but not to settlements of punitive damage claims. This narrower nondeductibility rule is arguably superior to both broader nondeductibility and tax-aware juries. The second objection is that they do not consider how their analysis would change if deterrence, rather than punishment, were viewed as the primary function of punitive damages. Although these are considerably more than quibbles, they do not detract from my view of their article as a major contribution to the scholarly literature on the intersection of torts and taxes, with the potential for significant real-world impact. The Response closes with a brief observation on the relationship between the article, plaintiffs’ attorneys, and ten-dollar bills on sidewalks

The Loophole That Would Not Die: A Case Study in the Difficulty of Greening the Internal Revenue Code

Congress and the Treasury have commissioned the National Academy of Sciences (NAS) “to undertake a comprehensive review of the Internal Revenue Code of 1986 to identify the types of and specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions and to estimate the magnitude of those effects.” The hope of the proponents of the NAS carbon audit is that Congress, once informed of the results of the audit, will respond by “greening” the Internal Revenue Code. This Essay cautions that a more environmentally friendly Code will not necessarily follow from the legislative consciousness-raising of the carbon audit. It offers the story of the “SUV loophole” as a case study in the difficulty of removing environmentally offensive provisions from the tax laws, even when Congress is well aware of the existence of those provisions