No Reparation Without Taxation: Applying the Internal Revenue Code to the Concept of Reparations for Slavery and Segregation

Abstract:     
In the article, Professors Andre Smith and Carlton Waterhouse explore the interesting and rich relationship between reparations and the tax law scholarship. Employing a rich dialogical style, the authors move fluidly between the theoretical and practical aspects of both reparations and tax law in a way that brings both areas of research together. Beyond the slavery reparations tax scams of the earlier part of the decade, the authors reveal an intriguing and important relationship between reparations and the United States tax code previously unexplored. The authors accomplish this in two distinct ways. They begin with an examination of reparations proposals for America’s legacy of slavery that range from individual monetary compensation to the creation of educational and other trust funds for beneficiaries. For each of the proposals considered the authors assess the tax consequences of the particular form of reparations proposed. Drawing on earlier research published by Professor Waterhouse, the authors consider a reparations program of institutional development within Black communities – with or without government support – that calls on African Americans and others to pool their resource to repair the harms of slavery and segregation. In this section, the authors discuss the laws of tax exemption and charitable organizations and whether tax exempt status may be conferred upon organizations whose stated goals are to repair the community of a particular race. Here, the article extends the work of David Brennan, in Race and Equality Across the Law School Curriculum: The Law of Tax Exemption, in which he asks whether a non-profit organization can keep its section 501(C)(3) status if it restricts its grant making, hiring and board membership based on race. The article’s second major contribution is an intriguing investigation of the tax code as a viable mechanism for providing governmental reparations. They find that using tax benefits such as credits, deductions, exclusions and exemptions the tax code can provide an effective and efficient system for distributing governmental reparations to intended beneficiaries.

Number of Pages in PDF File: 80

Keywords: governmental reparations, tax law, slavery, compensation, tax consequences, Black, tax code

working papers series