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Abstract:
In this paper, I provide an overview of the interaction between U.S. domestic law and tax treaties. This paper was prepared for, and was presented at, a conference on domestic law and tax treaties that took place in Milan, Italy in November 2005, under the aegis of the Italian Council of Ministers and the Organisation for Economic Co-operation and Development. The papers presented at the conference (including this paper) are scheduled to be published in book form - as part of the International Bureau of Fiscal Documentation's "EC and International Law Series" - in early 2006.

As is the case with each of the country reports for the conference, this paper is split into four parts: In the first part, I discuss where tax treaties fit into the hierarchy of U.S. law. In the second part, I discuss references to domestic law made by tax treaties and references to tax treaties made by domestic law. In the third part, I discuss the rise of treaty overrides and the codification of the later-in-time rule, the method for analyzing potential legislative overrides, the questionable potential for administrative overrides, and remedies for breach of a treaty through override. In the final part, I discuss the federal courts' use of judicial doctrines to combat abuse of treaties as well as legislative and administrative anti-abuse measures, focusing in particular on the extent to which the use of these doctrines and the application of these measures are viewed as consistent with treaty obligations.

tax, treaty, international, override, domestic law

Abstract:
Simply put, this article stands the traditional concept of tax equity on its head. Challenging the notion that tax equity is an unequivocal good, this article deconstructs the concept of tax equity to reveal the subtle, yet pernicious ways in which it shapes tax policy debates and impinges upon contributions to those debates. The article describes how tax equity, with its narrow focus on income - as the sole relevant metric for judging tax fairness, presupposes a population that is homogeneous along all other lines. Through this insidious homogenization, tax equity performs both a sanitizing and a screening function in the tax policy debate: In effect, tax equity forecloses consideration of non-economic forms of difference (e.g., of race, ethnicity, gender, sexual orientation, or physical ability) when determining the appropriate allocation of tax - and, by extension, societal - burdens. Paradoxically, with its ostensible concern for fairness, tax equity is often the most logical avenue for introducing critical concerns into tax policy debates; yet, tax equity has been defined in such a way as to bar entry to precisely these types of concerns. It should come as no surprise, then, that mainstream tax scholars tend to be so resistant - and, at times, openly hostile - to critical contributions to tax policy debates.

Drawing from the critical tax literature as well as critiques of that literature, the article provides examples of these homogenizing, sanitizing, and screening effects at work. The article then considers - and refutes - several anticipated critiques of this fundamental rethinking of a core concept. The article concludes by examining why, from the perspective of the dominant group, constructing a concept of tax equity that so narrowly focuses on the economic dimension of people is such a powerful rhetorical move. This exploration is largely guided by Antonio Gramsci's concept of hegemony, which posits that a social group dominates others through a combination of force and control over ideas.

tax, equity, horizontal equity, vertical equity, deconstruction, critical tax theory, critical, race, ethnicity, gender, sexual orientation, disability, hegemony

Abstract:
During the past decade, there has been a surge in outsourcing by businesses both in the United States and abroad. In the face of this surge in outsourcing as well as the trend toward outsourcing activities that come closer and closer to a business' "core," some commentators have underscored the need for businesses to make an educated decision about whether and what to outsource. This article, which, as its title indicates, is particularly concerned with cross-border outsourcing, is written in the same vein. It provides a non-exhaustive examination of the myriad of circumstances under which a decision to outsource the provision of goods or the performance of services to a foreign provider can affect the application of the U.S. international tax regime to the outsourcing business. The purpose of this article is to foster greater awareness of the sometimes dissonant tax aspects of cross-border outsourcing and thereby impel businesses and their legal advisors to take a more holistic view of the decision to outsource - a view that encompasses not only the potential business benefits and detriments of a decision to outsource, but also the potential tax benefits and detriments of such a decision.

outsourcing, tax, international, simplification, complexity

Abstract:
Inspired by Giorgio Agamben's Homo Sacer: Sovereign Power and Bare Life, this essay raises the question whether lesbians and gay men should fundamentally rethink their relationship with the law. Until now, lesbians and gay men have played by the rules: We bide our time for the appropriate moment to challenge the application of the law, and then do so from within the legal system through impact litigation. Focusing on Agamben's discussion of Kafka's parable, "Before the Law," this essay challenges us to consider whether, instead of engaging the law on its own terms, lesbians and gay men should use the law as a tool against itself in an effort to open the way for a meaningful and thorough reconsideration of the appropriate relationship between sexual orientation and legal and social norms.

sexual orientation, lesbian, gay, homosexual, tax, agamben, homo sacer, guerrilla, civil rights

Abstract:
Our book Critical Tax Theory: An Introduction (Cambridge University Press 2009) highlights and explains the major themes and methodologies of a group of scholars who challenge the traditional claim that tax law is neutral and unbiased. The contributors to this volume include pioneers in the field of critical tax theory, as well as key thinkers who have sustained and expanded the investigation into why the tax laws are the way they are and what impact tax laws have on historically disempowered groups. This volume will provide an accessible introduction to this new and growing body of scholarship. It will be a resource not only for scholars and students in the fields of taxation and economics, but also for those who engage with critical race theory, feminist legal theory, queer theory, class-based analysis, and social justice generally.

Included here a short abstract, the table of contents for the book, and our introduction to the book. Tax is the one area of law that affects everyone in our society, and we hope that you will find this book to be an important resource for understanding its impact on all of us.

critical, tax, social justice, gender, race, class, sexual orientation, disability, international, history

Abstract:
In this essay, I review UC-Berkeley history professor Robin Einhorn's book, American Taxation, American Slavery. In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and colonial taxation, the creation of a national tax structure, and the adoption of uniformity clauses in state constitutions in the antebellum period. I then turn to a discussion of how Einhorn's book helps to debunk an urban legend of modern tax policy debates; namely, that critical perspectives and tax simply don't mix.

taxation, slavery, critical, race, gender, sexual orientation, history

Abstract:
As technology renders the world a smaller and smaller place, an increasing number of tax practitioners are finding it necessary to provide tax advice with respect to cross-border transactions.

This article is intended for the tax practitioner who has little or no knowledge of the international rules in the Internal Revenue Code and who is faced with developing a structure for a foreign client's proposed investment in the United States (a so-called "inbound" investment). The article briefly describes the pertinent provisions in the Internal Revenue Code, and then, through a series of examples, attempts to demonstrate how the manner in which an inbound investment is initially structured can greatly impact the tax cost that will be incurred by the foreign client when he/she/it sells or disposes of (i.e., "exits") the proposed inbound investment. The purpose of the article is to help the practitioner make an informed decision concerning the most appropriate structure for the proposed inbound investment.

International, tax, United States, investment, sale, disposition, exit

Abstract:
In this contribution to a symposium entitled Out of the Closet and Into the Light: The Legal Issues of Sexual Orientation, I recount and then ponder the story of Robert Mueller. Mueller, a gay man, spent more than a decade protesting the discriminatory treatment of gays and lesbians under the Internal Revenue Code. As a result of his tax protest, Mueller was jailed for more than a year, and then was twice pursued by the IRS for taxes and penalties. In pondering Mueller's story, I consider it both as a telling example of the forcible closeting of gay and lesbian issues in tax and as a signpost pointing in the direction of the next front in the battle for gay rights.

Tax, protest, gay, lesbian, homosexual, frivolous, deconstruction

Abstract:
This article represents an attempt to bridge the gap between gay and straight understanding of the Internal Revenue Code's impact on same-sex couples. Through a combination of personal narrative and legal analysis, I try to explain how, from a gay perspective, the Code can be viewed as just another manifestation of the fluid mixture of hostility, bewilderment, and discomfort that generally characterize society's reaction to homosexuality. By explaining the experiences behind my perceptions of the Code, I hope to help my heterosexual colleagues to understand just how demeaning and oppressive the Code can seem to gays and lesbians - regardless of any net financial benefit that same-sex couples may receive, or any net financial detriment that they may suffer, under the Code.

gay, lesbian, homosexual, tax, taxation

Abstract:
Critical tax theory, much like its non-tax critical counterparts, has been consistently marginalized by mainstream tax academics. To date, tax crits have accepted and acquiesced in this marginalization. In this article, I question the idea that tax crits are outsiders as well as the notion that critical tax theory is a marginal form of tax policy literature. My primary purpose in questioning this conventional wisdom is to get tax crits to think critically about the collective identity of the critical tax movement.

I question the outsider status of critical tax theory by essentially turning the mainstream into the marginal (or the marginal into the mainstream, depending upon your perspective). I accomplish this by reconceptualizing a quite mainstream tax concept - tax expenditure analysis - as an application of critical (and, more particularly, deconstructionist) techniques to the Internal Revenue Code. Once the mainstream (i.e., tax expenditure analysis) has been recast as the marginal (i.e., deconstructionist analysis), the distinction between the two essentially deconstructs itself, calling into question the justification for attaching significant weight to the distinction between the mainstream and the marginal. This opens the way for tax crits to think critically about their marginality and what role it should play in the collective identity of the critical tax movement.

Tax expenditure, deconstruction, gay, lesbian, same-sex marriage, critical tax theory

Abstract:
This is the (revised) introductory chapter of a book that I am currently writing. The book is titled "Everyday Law for Gays and Lesbians", and is part of Paradigm Publishers' Everyday Law series.

The introductory chapter - indeed, the entire book - is built upon and around the power of narrative. I begin the chapter with a personal narrative that illustrates what I refer to as the current predicament of the lesbian and gay movement. In the first part of the chapter, I survey the social and legal landscape that surrounds the movement, explain why I view the current situation as a predicament, and consider the source of that predicament. Then, in the second part of the chapter, I set the stage - and the tone - for the remainder of the book by suggesting that the narratives of individual lesbians and gay men, told in their own words, are a radical and powerful tool for advancing us (meaning all lesbians and gay men) toward the unqualified acceptance that we seek. As I explain in the chapter, my goal in writing this book is to empower and inspire each of us to deploy these narratives in the most effective way possible.

In keeping with this view of the power of the individual narrative, I argue that it is up to each of us to draw attention to and challenge the ubiquitous privileging of heterosexuality in our society. And, the title of the book and the series notwithstanding, I further eschew overreliance on legal strategies for effecting change; instead, in the course of the book, I discuss both potential legal and non-legal avenues for effecting change.

I would greatly appreciate any comments that you might have on the chapter or any suggestions that you might have regarding coverage for the book.

Gay, lesbian, homosexual, civil rights, narrative, gay rights

Abstract:
Despite being widely-acknowledged as an important tax policy goal, simplification of the U.S. international tax regime has received little substantive attention from commentators. When simplicity concerns have been addressed, commentators have generally considered only the internal complexity produced by individual U.S. rules or by the interaction of one U.S. rule with another U.S. rule. In practice, however, the U.S. international tax regime does not operate in isolation, but rather continuously interacts with other countries' international tax regimes. These interactions often engender conflicts that produce additional, external complexity. As a result, true simplification of the U.S. international tax regime can be achieved only when the problem of complexity is viewed from a holistic perspective that takes into account both the regime's internal and external complexity.

With the need for a holistic approach in mind, this article explores the viability of adopting tax coordination - pursued through the use of comparative law as an aid to legislation - as a framework within which the U.S. international tax regime might be reformed. Initially, the concepts of tax coordination and tax harmonization are refined to provide a working vocabulary for use in the remainder of the article. Next, the manner in which the proposed framework is expected to operate in theory is detailed and the costs and benefits of adopting the proposed framework are considered. Finally, the manner in which the proposed framework is expected to operate in practice is examined using reform of the provisions governing the treatment of cross-border charitable contributions as an example.

international, tax, comparative law, reform, simplification, tax coordination, tax harmonization

Abstract:
This short essay is a review of J.C. Sharman's book Havens in a Storm: The Struggle for Global Tax Regulation. In the essay, I first provide a brief overview of Sharman's book, which approaches the Organisation for Economic Co-operation and Development's struggle with tax havens over harmful tax competition from a political science perspective. I then describe how the book (and, by extension, this review) will be of interest not only to those in the fields of international tax and international relations, but also to those concerned more generally with the dynamics of struggles between the powerful and the weak. I conclude by offering a constructive critique of one aspect of the book.

tax, international, international relations, hegemony, tax haven

Abstract:
In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit ¿lottery.¿ The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax system.

For lesbian and gay taxpayers, however, the realities of the tax compliance and enforcement process starkly contrast with the conventional picture. Lesbians and gay men are in the unique position of being the only group that is the object of both overt and covert invidious discrimination in the application of the tax laws. Thus, if a tax lawyer were to temper her advice to lesbian and gay clients in accordance with the conventional conceptualization of the duty to the tax system, she would risk compounding the effects of this discrimination and doing serious harm to her clients.

The purpose of this article is to open the necessary ethical space for crafting an alternative view of the duty to the tax system - one that better suits the representation of lesbian and gay clients. The alternative view that I lay out descries a duty to the tax system that exists in harmony with, rather than opposition to, the duty of zealous advocacy. This alternative view allows a tax lawyer simultaneously to protect her lesbian and gay clients from harm and to discharge her obligation to safeguard the integrity of the tax system.

duty, tax system, zealous advocacy, ethics, lesbian, gay, homosexual, deconstruction

Abstract:
This article first describes the proposed regulations issued under section 894 addressing the ability of domestic reverse hybrid entities to claim treaty benefits with respect to payments made to their interest holders (the proposed DRH regulations). After describing the proposed DRH regulations, the article next explores the potential that these regulations have to override existing U.S. treaty obligations. After concluding that the proposed DRH regulations are inconsistent with at least one existing treaty, the article concludes by questioning the power of the Treasury Department to promulgate regulations (such as the proposed DRH regulations) that override treaties.

Treaty, override, hybrid entity, administrative override, regulation, tax

Abstract:
During the past 25 years, Congress has with increasing frequency enacted legislation that is intended to override inconsistent provisions in U.S. tax treaties. These legislative overrides are harmful, and have been decried by our treaty partners, members of the executive branch, and commentators.

Until now, commentators have generally devoted themselves to describing and deploring legislative overrides of tax treaties, and have done no more than repeatedly call on Congress to cease enacting such legislation. Congress has ignored these pleas, and has continued to enact legislative overrides with impunity.

Given this background, the essay calls on commentators to cease pleading with Congress and instead to devote their time to developing theories for circumscribing Congress' ability to enact legislative overrides. Having issued this call, the remainder of the essay is devoted to the development of an argument that Congress lacks the constitutional authority to enact legislative overrides. The analytical framework of this argument is patterned after the Supreme Court's decision in Clinton v. City of New York, in which the Line Item Veto Act was held unconstitutional.

Abstract:
A recent piece in the Journal of Legal Education analyzing student surveys by the Law School Admission Council reports that, despite improvement in the past decade, LGBT students still experience a law school climate in which they encounter substantial discrimination both inside and outside the classroom. Included among the list of "best practices" to improve the law school climate for LGBT students was a recommendation to incorporate discussions of LGBT issues in non-LGBT courses, such as tax. In a timely coincidence, the Section on Sexual Orientation and Gender Identity Issues held a day-long program at the 2009 AALS annual meeting to consider LGBT issues across the law school curriculum. I prepared this essay as a hand-out for a break-out session on tax during that day-long program to help other tax teachers think about how they might incorporate LGBT issues into their tax classes.

In this essay, I identify several areas likely to be covered in tax courses in which a discussion of LGBT issues is relevant. The general areas of the tax curriculum that I have identified for inclusion are: fringe benefits, health insurance, attribution rules, medical expenses, property transfers, and income splitting. In each of these areas, I first discuss the general tax rules that serve as the backdrop for the discussion. Next, I recount a narrative that - in a concrete, personalized setting - raises the question of how these general tax rules apply to LGBT individuals. I then explain how the rules apply to the situation faced by the LGBT individual(s) in the narrative. Finally, I explore some of the policy considerations that one might raise (or that might surface on their own) in the course of a class discussion of the narrative situation.

tax, teaching, LGBT, gay, lesbian, bisexual, transgender, sexual orientation, gender identity, classroom, medical expenses, fringe benefits, health insurance, income splitting, attribution rules, and property transfers

Abstract:
In response to a letter from a clearly alarmed conservative organization, the IRS recently reaffirmed the fact that same-sex couples who are married under state law are ineligible to file a joint federal income tax return. In making this assertion (in a letter that the organization later published on the Internet), the IRS relied on the Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as a union of a man and a woman. In this article, I consider whether the IRS' statement to that organization will hold true when viewed from a wider, international perspective.

The United States is not the only country where same-sex couples are seeking (and have been granted) the right to marry. Same-sex couples have already been granted the right to marry in Canada, the Netherlands, and Belgium, and it appears that they will soon be granted the right to marry in Spain. Each of these four countries has concluded an income tax treaty with the United States. And, as is common, each of these income tax treaties contains a nondiscrimination article that prohibits the United States from taxing citizens of the other country in an other or more burdensome fashion than it taxes its own citizens in the same circumstances. The heart of this article consists of a discussion of the relationship between the nondiscrimination provisions in these treaties and DOMA. I conclude that a tenable argument can be made that DOMA should not be given priority over the treaty provisions and that, as a result, the IRS (and, in many cases, state and local tax authorities) should be required to recognize the marriages of resident alien same-sex couples who are citizens of Belgium, Canada, the Netherlands (or, soon, Spain).

Gay, lesbian, same-sex, marriage, tax, treaty

Abstract:
There is a generalized feeling among lawyers today that the legal "profession" is eroding into the legal "business." However, the lack of hard evidence of change has made it easy to dismiss this feeling as no more than nostalgia for a non-existent "golden age" of professionalism. Nevertheless, erosion of any sort is a slow-moving, gradual process, and its visible effects only become noticeable as they accumulate with the passage of time. The effects of what appears to be a true erosion in the professionalism of the tax bar have recently begun to accumulate, providing evidence that the generalized impression of a decline may actually be grounded in reality.

The evidence of this decline in professionalism takes the form of a growing number of articles in lay publications (e.g., The New York Times and Forbes magazine) that provide the general public with technical discussions of legal, but ethically questionable, tax avoidance techniques. The essay focuses on two groups of such articles that have appeared in The New York Times during 2002. The essay first provides a description of the tax avoidance techniques discussed in the articles and of how public attention effectively shut those techniques down. Next, as a prelude to discussing the impact of these events on the law as a profession, the meaning of the term "profession" is explored. It is contended that, when used to refer to the practice of law, the term "profession" is used in its sociological sense and describes an occupation whose members (i) have mastered an esoteric body of knowledge, (ii) are altruistic, and (iii) are self-regulating. Then, with this definition in mind, the events surrounding the apparent demise of each of these tax avoidance techniques are analyzed. Based on this analysis, it is concluded that these events undermine the rationale for granting the legal profession the right of self-regulation. By contributing to the erosion of the legal profession's claim to one of the defining characteristics of a "profession" these events necessarily contribute to the erosion of the legal profession's more fundamental claim to the benefits and privileges of professional status.

The purpose of the essay is to document and draw attention to this evidence, as its implications for the profession seem to have been overlooked by commentators. It is hoped that, by drawing attention to this evidence, the essay will spur members of the tax bar to reflect seriously on (i) their own actions and how they may have contributed to the erosion in professionalism and (ii) more broadly, whether the standard of conduct to which they actively hold themselves and their peers is sufficiently rigorous.

law, ethics, taxation, professionalism

Abstract:
Recently, national attention has been riveted on California and Connecticut. In those states, same-sex couples who could already obtain legal recognition for their relationships by entering into a domestic partnership or a civil union have been fighting to extricate themselves from their second-class status by obtaining access to marriage. As of this writing, same-sex couples won their battle in Connecticut, but it appears that they have lost their battle in California - at least for now.

Important as these battles are, it should not be forgotten that most states do not legally recognize same-sex relationships at all. To obtain even a measure of legal recognition for their relationships, same-sex couples in these states must surmount difficult legal obstacles and sometimes cope with significant levels of legal uncertainty regarding their ultimate success. In this paper, I describe the legal obstacles and uncertainties currently faced by same-sex couples in Pennsylvania.

In the paper, I first describe the (rather small) extent to which same-sex relationships currently benefit from express legal recognition in Pennsylvania. I then describe the alternative means that same-sex couples must employ to obtain a measure of legal and nonlegal recognition for their relationships. I next cover issues relating to the establishment and breakup of families. Finally, I describe a few miscellaneous, yet interesting recent cases relating to same-sex couples in Pennsylvania.

same-sex, gay, lesbian, couple, domestic partnership agreement, planning, will, advance directive, relationship, living trust, standby guardianship, second-parent adoption, assisted reproductive technology

Abstract:
During the past decade, stories have appeared from time to time in the tax press recounting Western (and particularly American) influence on the tax reform process in the transition countries of Central and Eastern Europe and the former Soviet Union. This article considers the propagation of Western tax rules in these countries from an ethical perspective, focusing on the relationship between American tax experts and the transition countries that they advise. Arguing that this relationship is fiduciary in nature, the article begins the process of exploring the relationship's ethical boundaries, employing the norms that govern the analogous attorney-client relationship as a benchmark.

Before taking up the task of developing ethical guidelines for tax cloning, however, the article first suggests that the term legal cloning replace the term legal transplants as the conventional means of referring to the propagation of legal rules. This change in terminology would not only more accurately describe the process of effectuating the penetration or importation of legal rules, but, because of the decidedly negative connotation of the word cloning, would also tend to evoke the ethical dimension of this phenomenon and add a needed dose of caution to attempts at propagating Western tax rules in transition countries.

Then, given the aptness of the cloning analogy, the article turns to the bioethics debate over human cloning for aid in developing ethical guidelines for tax cloning. After analyzing the arguments made by opponents and proponents of human cloning, it is concluded that the principle of nonmaleficence is at the core of this debate. The article next turns to the attorney-client relationship, in its role as benchmark for developing ethical guidelines for tax cloning, and analyzes the ethical standards governing the professional conduct of lawyers to determine whether the principle of nonmaleficence also serves as part of the general framework for analyzing problems in legal ethics. Determining that it does, the article concludes by suffusing the principle of nonmaleficence - in its specific application to the context of tax cloning - with content and meaning by describing the extant comparative law literature on issues related to legal cloning and synthesizing from it ethical guidelines that American tax experts can employ when considering the propagation of Western tax rules in transition countries.

Tax, transition countries, Central Europe, Eastern Europe, Soviet Union, newly independent states, legal transplants, legal cloning, ethics

Abstract:
In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian marriages.

Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many constitutions. Where such constitutional challenges are unavailable or unavailing, classifying the DOMAs as a tax provides grounds for arguing that this tax on lesbian and gay families should be taken into account when assessing the justness of the distribution of the overall tax burden. On a rhetorical level, labeling the DOMAs a tax on lesbian and gay families effectively counters the notion - implicit in their current moniker - that the DOMAs are a necessary "defense" of marriage against an assault by same-sex couples. Instead, calling the DOMAs a tax may prove to be an effective means for shifting the rhetorical debate over same-sex marriage by making it clear that the DOMAs do nothing more than punish lesbian and gay families because they are different.

tax, lesbian, gay, sexual orientation, marriage, constitution, civil rights

Abstract:
Over the past several months, the new written tax advice rules in Circular 230 have engendered a great deal of debate. On one side, tax practitioners have repeatedly voiced their frustration in interpreting the new rules along with their fears that the rules may have a far-reaching and radical impact on everyday tax practice. On the other side, the government has attempted to soothe practitioners' fears while at the same time insisting upon a generally broad interpretation of the new rules.

In this short essay, I provide an outsider's perspective of this debate over the meaning of the new written tax advice rules. Viewing the action from the sidelines, I maintain that, in this debate, we are actually watching deconstruction in action. After providing a bit of background on the deconstructionist concept of the liberation of the text from the author, I assert that we are witnessing the free play of the text of Circular 230 following its liberation from its government authors. While I explain that this is quite a normal and natural process, I do express my sympathy for those who must live with the uncertainties inherent in the free play of a text that governs one's own conduct.

Tax, ethics, Circular 230, deconstruction, written tax advice, tax opinion

Abstract:
In this paper, I explore how the deduction for extraordinary medical expenses, codified in I.R.C. section 213, furthers domination in American society. On its face, section 213 probably does not seem a likely candidate for being tagged as furthering domination. After all, this provision aims to alleviate extraordinary financial burdens on taxpayers who already suffer from significant medical problems -- and who, by definition, lack the help of insurance to relieve those burdens. But, as laudable as this goal might be, careful attention to the text and context of section 213 reveals that it does not apply to all taxpayers equally. In fact, section 213 draws sharp distinctions between different types of families. Looking at this provision from the perspective of those who require the help of assisted reproductive technology to form a family, I explain how section 213 furthers the hegemony of the so-called traditional family and concomitantly contributes to the subordination of lesbian and gay families as well as many other nontraditional American families.

lesbian, gay, sexual orientation, family, medical expense, assisted reproductive technology, domination, subordination

Abstract:
The debate in the United States over individual versus joint federal income tax filing is at something of a crossroads. For decades, progressive — and, particularly, feminist — scholars have urged us to abolish the joint return in favor of individual filing. On the rare occasion when scholars have described what such an individual filing system might look like, the focus has been on the ways in which the traditional family must be accommodated in an individual filing system. These descriptions generally do not take into account — let alone remedy—the tax system’s ongoing failure to address the tax treatment of nontraditional families. More recently, scholars concerned with the sexual-orientation-based discrimination that pervades our tax laws have proposed extending joint filing to same-sex and, in some cases, unmarried different-sex couples. But these proposals are equally problematic because they merely widen the privileged circle by extending the tax advantages provided to traditional families to other relationships patterned after the traditional family (and only to such relationships). Especially in view of the growing complexity of family arrangements in the United States, I find neither of these proposed paths to be desirable. As an alternative, I lay out a third path in this article that has a different, more inclusive destination. Relying on the Canadian experience with individual filing and proposals there to move “beyond conjugality,” I sketch the outlines of an individual filing system that, where appropriate, recognizes all economically interdependent relationships for tax purposes — and not only those that are patterned after the traditional family headed by a married different-sex couple.

tax, taxation, return, individual, joint, United States, Canada, sexual orientation, gender, feminist, economic interdependence